l^iilli^llliiliiiil^ 


Rights  and   Duties 
of  Neutrals 

A  Discussion  of  Principles  and  Practices 


By 
Daniel  Chauncey  Brewer 


G.  P.  Putnam's  Sons 

New  York  and   London 

Zbc     1knicf?erbocfter     ipress 

1916 


Copyright,  1916 

BY 

DANIEL    CHAUNCEY    BREWER 


Ube  "Btnicherbocber  press,  tKcvo  ffiorft 


^'K^'D 


PREFACE 

THE  majority  of  the   following  chapters 
were  prepared  for  the  Army  and  Navy 
Journal   in   the   beHef   that   the   European 
war  of  1 9 14  was  to  force  upon  the  attention 
of  the  United  States  issues  that  might  readily 
lead  to  war,  if  the  countrj^  was  true  to  its 
traditions  as  a  Neutral  Power. 
;^        Of  these  issues  the  fundamental  one,  which 
^     in  a  sense  involves  all  others,  is  of  course — 
whether  or  not  a  peaceful  commercial  people 
shall  have  a  place  under  the  sun,  or,  to  put 
^    it   differently,   whether  nations  that  prefer 
J    the  cultivation  of  commerce,  art,  and  letters 
^    are  to  impose  their  will  upon  militant  peoples 
^    or  be  ruled  by  these. 

^^  While  the  fact  that  the  United  States  may 
be  made  a  belligerent  by  breach  of  its  neu- 
trality, makes  it  suitable  for  officers,  upon 
whom  the  nation  depends  in  time  of  stress, 


iv  Preface 

to  discuss  the  rights  and  duties  of  neutrals, 
it  is  the  subject  of  no  less  concern  to  the 
citizen  who  craves  peace. 

This  is  because,  with  the  elimination  of 
time  and  space,  the  nations  have  been  drawn 
together  in  such  a  pell-mell  way  as  to  make 
strife  between  any  two  of  them  of  grave 
import  to  the  others ;  and  because  the  sub- 
ject of  a  great  Power,  which  may  become 
instantly  involved  in  hostilities  by  a  min- 
isterial message  that  reflects  nothing  but  self- 
respect,  is  apt  to  find  himself  involved  in 
the  swift  (not  slow)  workings  of  God-driven 
mills. 

A  century  ago,  when  the  United  States  was 
painfully  evolving  the  neutrality  laws  which 
found  expression  in  the  Statutes  of  1818, 
little  consideration  was  given  to  the  rights 
and  duties  of  neutrals  because  the  arbitrary 
will  of  monarchs  made  war  a  political  neces- 
sity. There  were  neutrals  in  name,  and 
armed  neutralities,  but  they  were  both  too 
weak-kneed  to  be  efficient. 

The  imagination  of  a  magician  could  hardly 


Preface  v 

conceive  of  the  change  that  a  hundred  years 
have  made.  To-day  peoples,  although  some 
of  them  are  not  as  yet  sufficiently  self-con- 
scious, not  kings,  are  the  important  factors, 
and  the  attention  of  the  peoples  is  turned 
toward  commerce  not  arms.  It  follows  in- 
exorably, if  these  conditions  continue,  that 
the  sort  of  neutrality  which  seeks  to  separate 
itself  from  international  quarrels,  and  which 
is  the  antithesis  of  belligerency,  is  on  the 
eve  of  coming  into  its  own. 

Will  it?  Yes!  If  neutrals,  in  an  epoch 
that  is  elemental  because  of  the  rush  of 
unharnessed  forces,  and  at  a  time  when  the 
flight  of  an  army  corps  in  distant  battlefields 
may  be  the  signal  for  changes  terrific  in  their 
consequence,  prepare  themselves,  by  arming 
and  unflinchingly  standing  by  their  rights,  to 
compel  peace  as  soldier  kings  have  compelled 
war. 

While  the  author  believes  and  has  not 
hesitated  to  point  out  that  many  customs 
incorporated  in  the  law  of  nations  are  based 
on  faulty  logic,   and  should  be  eliminated 


VI 


Preface 


or  modified,  he  is  impressed  by  the  fact  that 
law  to  be  of  value  must  be  authoritative. 
Great  care  has  therefore  been  taken,  in  such 
reference  to  the  rights  and  duties  of  neutrals 
as  the  scope  of  this  book  has  permitted,  to 
state  what  appears  to  be  the  positive  law 
of  nations,  and  to  make  it  clear  tha  the 
latter  must  control  until  revision  is    made. 

D.C.  B. 
Boston,  Dec.,  191 5. 


CONTENTS 

CHAPTER  PAGE 

I. — Some    General       Observa- 
tions        ....         I 

II. — Neutral      Influence      and 

Freedom  of  the  Seas         .         7 

III. — The  Doctrine  of  Search      .       15 

IV. — The  "  Lusitania  "  Matter — 
Non-Comb  AT  ants  on  Mer- 
chantmen ...       23 

V. — Incidental  Rules  Affect- 
ing Rights  of  Neutrals 
on  the  Sea       ...      31 

VI. — Convoy         ....      39 

VII. — Avoidance  of  False  Issues — 
Expert  Service  for  the 
Press  .».«.,.,.         .         .      48 

VIII. — Belligerent    Use    of    Neu- 
tral Flags        .         .         -56 

IX. — Touching  Neutral  Attitude 
toward  Certain  Belliger- 
ent Innovations       .         .       66 
vii 


viii  Contents 


X. — A  Further  Word  as  to  Justi- 
fiable Dominion       .         .       75 

XI. — Blockade     ....       83 

XII. — Effectiveness  as  a  Requisite 

OF  Blockade     ...       92 

XIII. — Some  Preliminary  Remarks 
Regarding  Recent  Inter- 
ference with  Neutral 
Trade       ....     100 

XIV. — The   Order   in   Council   of 

March,  1915     .         .         .     109 

XV. — Defense  of  British  Policy    .     117 

XVI. — Preliminary    Comments    on 

the  Law  of  Contraband  .     127 

XVII. — The  Unsatisfactoriness  of 
the  Doctrine  of  Contra- 
band ....     136 

XVIII. — General     Rules — Absolute 

Contraband      .         .         -144 

XIX. — Contraband  as  Further  De- 
fined BY  Recent  Procla- 
mations   .         .         .         .151 

XX. — Carriage    of    Contraband 

— Continuous  Voyage       .     159 


Contents  ix 

CHAPTER  P*^^ 

XXI.— Unneutral  Service      .         .166 

XXIL— Cardinal  Rights.         .         .176 

XXIIL— Expression  of  Opinion  .     185 

XXIV. — Belligerent  Agents  in  Neu- 
tral States      .         .         -195 

XXV. — A  New  Problem:  Aliens  and 
Hyphenated  Citizens  in 
Neutral  States        .         .210 

XXVI.— Embargo      .         .         •         .220 

XXVII. — Duties  as  Defined  by  Pro- 
clamation .         .         .     230 

XXVIII. — Some      Concluding     Obser- 
vations    ....     240 

Index 249 


The  laws  affecting  neutrality  for  the  next  century  are 
to  be  determined  largely  by  the  attitude  of  the  United 
States  during  the  present  European  conflict. 

Its  commercial  prosperity  as  well  as  its  tranquillity 
depends  upon  its  present  sagacity. 


Rights    and    Duties    of 
Neutrals 


CHAPTER   I 

SOME   GENERAL   OBSERVATIONS 

^X  WHETHER  the  rights  of  man  and  of  na- 
'  '  tion  precede  or  follow  his  or  its  duties 
is  a  matter  that  philosophers  must  decide. 
For  practical  minds  the  rights  of  either  are 
dependent  upon  a  performance  of  duty.  The 
citizen  behind  the  bars  may  babble  of  rights, 
but  his  failure  to  perform  his  obligations  has 
eliminated  these,  and  the  cabinet  of  a  nation 
which  has  flagrantly  disregarded  primal  law 


2        Neutral  Rights  and  Duties 

cannot  expect  a  hearing  when  it  wishes  to 
claim  privileges. 

This  truth  if  borne  in  mind  during  any  dis- 
cussion of  the  rights  and  duties  of  neutrals 
will  tend  to  logical  thinking  and  consistent 
action.  It  will  be  found  applicable  to  minor 
matters  affecting  such  theories  as  those  of 
contraband  and  blockade,  as  well  as  to 
broader  principles  and  state  pohcy. 

Thus  for  an  instance  and  specifically:  The 
position  of  the  United  States  is  immensely 
stronger  when  it  insists  upon  the  rights  of  its 
individual  citizens  to  manufacture  and  ex- 
port arms  (thus  directly  or  indirectly  aiding 
either  belligerent)  than  it  would  be  if  as  a 
nation  it  had  not  endeavored  to  observe 
every  obligation  which  rests  upon  a  neutral, 
by  itself  abstaining  from  such  activities. 

That  any  deviation  from  such  a  recognized 
standard,  viz.,  the  observance  of  international 
obligations  by  a  state  that  claims  an  inter- 
national right,  in  discussing  matters  which 
have  to  do  with  neutrality,  is  dangerous, 
scholars  will  generally  agree.     Meanwhile  it 


Some  General  Observations       3 

should  be  obvious  to  practical  men  that  there 
is  a  paramount  duty  which  can  hardly  be 
referred  to  as  prescribed  by  ethics  and  inter- 
national law,  which  cabinets  should  attend 
to  as  a  matter  of  high  policy  and  expediency 
before  they  are  driven,  as  they  sometimes  are, 
to  assert  privileges  which  they  have  a  right 
to  claim. 

This  is  the  duty  of  preparedness,  which  a 
neutral  nation,  desirous  of  peace,  owes  to 
belligerents,  to  the  sisterhood  of  civilized 
states,  and  to  its  own  people. 

(i)  To  belligerents  because  they  may  be 
led  by  the  objector's  apparent  military  weak- 
ness into  disregarding  rights  that  are  being 
infringed. 

(2)  To  the  sisterhood  of  civilized  states 
with  whom  in  the  matter  of  principles  com- 
monly recognized  as  sound  each  Power  is 
sympathetically  leagued  for  the  preservation 
of  right  standards,  whether  or  not  such  a 
compact  follows  lines  suggested  by  the 
Cleveland  Conference  of  May  12,  191 5. 

(3)  To  its  own   people  who  may  at  any 


4        Neutral  Rights  and  Duties 

time  insist  upon  ministerial  action  which  is 
fraught  with  peril. 

Primary  as  this  rule  of  conduct  for  any 
great  and  self-respecting  state  should  be,  it  is 
an  extraordinary  fact  that  the  United  States, 
whose  interest  and  historic  part  in  the  annals 
of  the  last  century  is  that  of  a  neutral,  has 
failed  to  appreciate  the  place  preparedness 
plays  in  giving  effect  to  proclamation  and 
protest.  This  is  the  more  anomalous  because 
the  nation  has  not  been  blind  to  its  moral 
obligations,  and  because  its  population  is 
essentially  peace-loving,  and  ought  to  appre- 
ciate that  when  the  word  neutral  is  printed 
in  the  same  capital  letters  as  the  word  bel- 
ligerent the  world  will  be  far  nearer  the  peace 
millennium  than  it  ever  can  become  through 
opposing  resolutions  to  bayonets. 

Is  it  not  time  to  change  all  this?  Is  it  not 
for  men  who  deal  with  things  as  they  are  in 
the  light  of  what  they  desire,  rather  than 
academic  theories,  to  see  to  it  now  that  our 
national  declarations  of  neutrality  be  ren- 
dered respectable  by  putting  the  nation's 


Some  General  Observations       5 

reserve  or  latent  power  in  such  shape  that  it 
can  be  used  if  exigency  requires  ? 

Only  by  so  doing,  viz.,  performing  a  nation- 
al duty  as  above  described  to  sovereign  states 
grouped  as  the  embodiment  of  civilization  and 
in  their  several  capacities,  can  we  secure  the 
standing  in  court  which  is  essential  to  us, 
if  we  mean  to  champion  in  our  own  interests 
and  those  of  humanity  the  achievements  won 
for  neutrality  in  the  past,  and  secure  such 
conquests  as  will  put  neutral  nations  into  the 
position  in  world  conferences  which  belongs 
to  them. 

It  is  interesting  to  discuss  the  rules  of  war 
as  they  apply  to  neutrals;  to  define  contra- 
band; to  argue  the  limitations  of  blockade, 
the  new  theories  of  "war  zone,"  etc.,  but  a 
commercial  and  peaceful  nation  should  never 
forget  that  the  international  law  of  Hall  and 
Oppenheim  is  law  made  largely  under  the 
influence  of  belligerent  states  in  an  abnormal, 
not  normal,  status,  and  that  the  industrial 
and  social  interests  of  neutrals  require  that 
positive  law  in  all  these  matters  should  more 


6        Neutral  Rights  and  Duties 

closely  approximate  to  the  natural  law  of 
Grotius  and  Phillimore,  which  is  nothing 
other  than  economic  and  moral  law. 

This  will  never  be  brought  about  until 
neutral  states,  noncombatants,  speaking 
with  authority  because  they  have  performed 
their  political  and  ethical  obligations,  play 
a  major  part  in  world  councils. 


CHAPTER  II 

NEUTRAL  INFLUENCE  AND  FREEDOM  OF  THE 

SEAS 

A  FTER  a  neutral  nation  has  safeguarded 
"^^  its  own  interests  by  preparing  for  any 
contingency,  it  finds  that  as  a  by-product  to 
the  achievement  of  national  security  it  is 
possessed  of  influence  that  was  not  its  before. 
This  comes  automatical^  with  the  creation 
of  a  military  and  naval  force  proportional  to 
its  needs. 

Fitted  in  its  own  eyes  for  defense,  it  be- 
comes from  the  belligerent's  point  of  view 
a  powerful  medium  for  offense.  In  this  na- 
tions have  all  the  frailty  and  weakness  of 
mortals.  During  the  time  that  the  neutral 
state  was  of  no  importance  from  a  military 
point  of  view  it  was  ignored.  Now  that 
an  army  and  navy  are  features  of  its  sov- 
7 


8        Neutral  Rights  and  Duties 

ereign  life  it  is  courted  and  treated  with 
consideration. 

It  is  curious  that  eminent  pacificists  whose 
hopes  for  the  future  rest  upon  the  part 
assigned  neutral  states  in  world  councils 
have  given  this  fact  so  little  weight. 

Oppenheim,  the  text  writer  on  international 
law,  is  a  better  observer.  To  him  (vol.  ii., 
page  359)  the  shaping  up  of  such  resources 
has  been  a  most  important  factor  in  bringing 
about  the  rapid  development  in  the  laws  of 
neutrality  during  the  nineteenth  century. 
If  the  distinguished  professor  is  right,  and 
ministries  involved  in  war  are  careful  not  to 
offend  a  powerful  neutral  for  fear  of  driving 
it  into  the  opposite  camp,  the  present  oppor- 
tunity for  the  United  States  to  win  lasting 
advantages,  not  only  for  itself  as  a  neutral, 
but  for  all  neutral  states,  is  one  that  is  his- 
torically without  parallel. 

This  is  especially  so  because  trade  and 
commerce,  now  the  chief  factor  in  community 
life,  have  waked  a  world  public  not  only  to  a 
realization  of  the  economic  and  unprevent- 


Freedom  of  the  Seas  9 

able  loss  from  war,  but  to  the  fact  that 
states  not  involved  in  conflict  are  unneces- 
sarily embarrassed  by  rules  which  are  as 
illogical  as  they  are  archaic. 

All  that  is  now  needed  is  strong  and  con- 
sistent leadership  among  the  nations.  With 
this  furnished,  the  close  of  the  present  war 
will  find  belligerent  peoples  as  anxious  as 
neutrals  to  put  the  noncombatant  in  a  posi- 
tion from  which  it  may  even  hold  the  dogs  of 
war  themselves  in  check. 

Unfortunately  it  is  one  thing  to  have  an 
opportunity  to  do  things  of  lasting  value  and 
another  thing  to  act.  Meantime  no  discus- 
sion of  neutral  rights  and  duties  in  this  day 
is  sufficient  that  does  not  contemplate  both 
progress  and  reform. 

In  no  department  of  international  law  is 
this  more  apparent  than  in  that  which  in- 
timately affects  the  United  States  and  which 
has  to  do  with  rules  and  practices  governing 
that  great  portion  of  the  globe  which  is 
covered  with  water  and  is  familiarly  desig- 
nated as  the  High  Seas,  whether  the  same 


10      Neutral  Rights  and  Duties 

is  understood  to  be  the  "unenclosed  ocean 
without  fauces  terrcB''  of  Judge  Story,  or 
is  otherwise  designated. 

For  reasons  varying  in  weight  from  the 
ingenuously  naive  and  worthless  to  the  re- 
spectable, both  publicists  and  jurists  have 
declared  these  to  be  free. 

This  is  puzzling  to  the  student  who  reads 
of  belligerent  aggression  in  the  daily  press; 
it  must  be  irritating  to  naval  officers  who, 
themselves  distinguished  commentators  on 
the  law  of  nations,  are  informed  regarding  the 
facts. 

For  the  high  seas  are  not  free  in  practice 
because  of  the  right  of  search  which  is  at 
present  recognized  as  belonging  to  nations  at 
war,  and  the  theory  is  so  obviously  fiction  \ 
that  it  is  hardly  worth  while  to  read  learned 
treatises  which  tell  why  the  ocean  is  con- 
sidered to  be  something  else  than  it  is. 

No  one  will  deny  that  here  is  occasion  for 
reform  as  far  as  present  practice  is  concerned, 
nor  that  progress  is  desirable  even  if  it  brings 
the  arbiters  of  international  affairs  no  further 


Freedom  of  the  Seas  ii 

than  is  required  to  make  respectable  the 
words — "Freedom  of  the  Seas." 

While  serious  objection  will  be  urged  to  any 
change  in  prevailing  custom  by  the  represen- 
tatives of  nations  that  have  championed  the 
rule  of  the  hour,  there  is  a  serious  question 
if  all  such  would  not  directly  benefit  by 
voluntarily  curtailing  their  powers.  Think  of 
the  trouble  that  a  modification  of  the  right 
of  search  would  eliminate!  Now  in  danger 
of  being  extended,  its  broad  application  long 
since  brought  peril  to  promoters  who  were  too 
anxious  to  force  neutral  nations  into  partial 
servitude  to  notice  its  effect  upon  their  own 
interests. 

In  1812  it  led  England  into  conflict  with 
America,  and  left  a  hard  feeling  toward  the 
mother  country,  causing  bad  blood  for  over 
a  century.  It  almost  precipitated  a  war  be- 
tween Great  Britain  and  the  United  States 
because  of  the  Mason  and  Slidell  incident 
at  a  time  when  the  cause  of  the  Union  might 
have  been  wrecked  thereby. 

It  has  recently  roused  discontent  in  the 


12      Neutral  Rights  and  Duties 

United  States  toward  all  the  belligerents; 
and  through  Germany's  inexplicable  inter- 
pretation, extension,  and  application  of  Pre- 
cedents must,  if  persisted  in,  bring  it  into 
conflict  with  a  great  nation  that  does  not 
want  to  fight. 

Notwithstanding  these  facts,  we  cannot 
expect  belligerent  nations  of  themselves  to 
make  any  departure  from  past  practices. 
Their  immediate  selfish  interests  will  not 
permit  it.  The  initiative  must  come  from 
neutral  states,  which  should  be  prepared  to 
argue  somewhat  as  follows: 

"The  older  publicists,  not  hidebound  by 
precedent,  based  the  freedom  of  the  seas 
upon  the  sentimental  ground  that  they  were 
equally  convenient  to  all  peoples  as  a  medium 
for  communication  and  therefore  should  be 
controlled  by  none ;  and  upon  the  more  satis- 
factory premises  that  no  nation,  however 
powerful,  can  exercise  consistent  dominion 
thereupon.  States  will  find  it  for  their 
advantage  to  bear  in  mind  both  points,  but 
especially  to  recognize  actual  dominion  as 


Freedom  of  the  Seas  13 

the  only  criterion  which  justifies  meddling 
with  the  concerns  of  a  sister  nation." 

Politely  submitted,  matter  of  this  sort 
ought  to  receive  fair  consideration,  especially 
if  backed  by  representations  which  indicate 
that  the  neutral  nations  are  wearied  of  the 
part  assigned  them — that  of  the  chestnut- 
pulling  cat  in  the  fable. 

Perhaps  the  time  has  not  come  for  such  a 
leap  forward.  If  not,  then  some  approxima- 
tion is  to  be  sought  for.  Meantime  is  there 
not  reason  to  believe  that  if  a  concert  of  the 
great  Powers  ever  does  decide  to  limit  acts 
of  sovereignty  to  the  sphere  in  which  the 
acting  nation  is  in  a  position  (whether  by 
peaceful  or  war  measure)  to  maintain  con- 
sistent and  constant  dominion,  then  not  only 
will  a  hundred  tangles  be  avoided,  but  many 
of  the  new  problems  which  arise  in  con- 
nection with  the  adaptation  of  old  rules 
to  new  conditions  will  be  automatically 
adjusted? 

New  conditions  are  caused  by  improve- 
ments   made    in    artillery,    ships    of    war, 


14      Neutral  Rights  and  Duties 

fortresses,  means  of  offense  and  defense. 
These  are  bound  to  bring  about  continuous 
and  serious  complications  for  neutrals  unless 
positive  international  law  is  put  on  a  sane 
basis. 


CHAPTER   III 

THE   DOCTRINE   OF   SEARCH 

T^HE  neutral  state  which  realizes  that 
■■■  it  will  never  secure  its  rights  upon  the 
sea  until  the  authority  of  belligerents  is 
curtailed  so  as  to  correspond  to  the  power 
they  can  respectively  exert  is  apt  to  find 
self-restraint  difficult  in  time  of  aggression. 
Nevertheless,  it  is  better  for  prudential 
reasons  for  it  to  abide  by  law  and  custom 
in  this  as  in  other  matters  until  it  can  secure 
a  following  among  the  nations. 

By  so  doing — viz.,  itself  waiting  for  Inter- 
national acceptance  of  the  reform  it  never 
hesitates  to  urge — it 

1.  Wins  the  confidence  of  sister  states; 
and 

2.  Puts  itself  in  an  impregnable  position 
when  it  comes  to  insisting  that  no  jot  or  tittle 

15 


1 6      Neutral  Rights  and  Duties 

of  favorable  existing  law  shall  be  abrogated — 
a  thing  which  it  is  absolutely  essential  for  it 
to  do,  unless  it  prefers  to  drift  into  a  more 
untenable  position  than  that  which  it  is 
finding  so  unsatisfactory. 

What  is  the  legal  status  which  properly 
frets  the  noncombatant  commercial  neutral, 
and  which  restricts  its  sovereignty?  Briefly 
and  baldly  this:  While  neutrals  and  belliger- 
ents in  time  of  war  have  authority  over  their 
respective  lands  and  appurtenant  waters  as 
well  as  over  their  war-ships  on  the  sea,  the 
neutral  has  only  a  limited  authority  subject 
to  belligerent  visitation,  search,  and  condem- 
nation over  its  merchant  fleet.  That  is,  the 
neutral  is  expected  to  quietly  suffer  an  indig- 
nity from  a  belligerent  which  a  belligerent 
need  suffer  from  none  but  the  enemy  against 
whose  attacks  it  is  armed. 

That  rules,  operative  on  any  sea  in  which 
the  belligerent  man-of-war  sees  fit  to  order  a 
neutral  trading  craft  to  haul  to  and  submit 
to  such  a  search  as  pleases  the  boarding 
officer  or  his  superior,  are  galling  in  the  ex- 


The  Doctrine  of  Search         17 

treme,  are  unreasonable  and  are  unfair,  must 
occur  to  anyone.  What  if  there  be  a  block- 
ade of  enemy  ports  or  the  trader  carry 
contraband?  Why  should  the  belligerent 
interfere  with  a  neutral  ship  in  waters  over 
which  God  Almighty  alone  holds  dominion, 
and  which  may  be  off  Kamtchatka,  while  the 
feud  itself  affects  nations  in  the  antipodes? 

The  question  can  have  no  very  different 
answer  from  this.  In  the  good  old  days 
(which  seem  to  be  with  us  again),  when  na- 
tions pursued  war  as  a  business,  it  pleased 
combative  and  ruling  Powers  that  neutrals 
should  be  "cabined,  cribbed,  confined," 
and  that  their  convenience,  trade,  and  very 
life  interests  should  be  crumpled  into  such 
space  as  suited  the  militant  states. 

Inasmuch  as  Mars  was  beyond  question 
wielding  more  influence  at  the  council  board 
of  the  gods  in  those  days  than  Mercury,  such 
policies  took  shape  and  form  in  laws  and 
customs  suited  to  the  requirements  of  the 
warrior  and  inimical  to  the  trader. 

Unelastic,  rigid,  and  set,  these  laws  should 


1 8      Neutral  Rights  and  Duties 

long  since  have  been  canceled,  with  the  adop- 
tion of  new  and  wise  standards  at  the  begin- 
ning of  the  nineteenth  century,  but  although 
a  few  changes  have  been  wrought  in  their 
character,  we  are  only  just  coming  to  appre- 
ciate that  the  whole  matter  in  mind  when  the 
doctrine  of  search  was  formulated  must  be 
taken  up  de  novo,  if  international  law  is  to 
correspond  with  the  eternal  verities  or  with 
the  requirements  of  this  generation. 

When  is  this  to  be  done?  One  person's 
surmise  is  probably  as  good  as  another's. 
Meantime,  it  will  be  a  long  step  forward  if 
neutrals  can  shortly  modify  the  right  of 
search  so  that  it  will  be  accorded  to  none 
except  as  a  police  measure  in  time  of  peace, 
outside  of  the  waters  so  dominated  by  the 
country  of  the  visiting  war-ship  as  to  make 
its  authority  supersede  every  other. 

Pending  this  time  let  us  hope  that  the 
present  administration  in  Washington  will  see 
to  it  that  nothing  is  lost  which  has  been 
secured  by  American  diplomacy  in  the  past. 
At  present  its  position  is  admirably  dignified 


The  Doctrine  of  Search         19 

and  unassailable.  All  that  remains  for  it 
when  persuasively  urged  by  foreign  ministries 
to  wink  at  unconscionable  practices  claimed 
to  be  extensions  of  existing  law  is  to  stand 
fast  by  such  deliverances  as  that  of  Lord 
Stowell  in  the  Flad  Oyen,  which  can  be 
found  in  L.  C.  Rob.  A  dm.  Rep.,  the  occasion 
being  the  wrongful  condemnation  in  a  neu- 
tral port  of  a  ship  taken  by  the  enemy 
French. 

"In  my  opinion, "  says  the  learned  Justice, 
"if  it  could  be  shown  regarding  mere  specu- 
lative general  principles,  such  a  condemna- 
tion ought  to  be  deemed  sufficient,  that  would 
not  be  enough — more  must  be  proved.  It 
must  be  shown  that  it  is  conformable  to  the 
usage  and  practice  of  nations."  And  again, 
"A  great  part  of  the  Law  of  Nations  stands 
on  no  other  foundation."  "It  is  introduced 
indeed  by  general  principles,  but  it  travels 
with  those  general  principles  only  to  a  certain 
extent,  and  if  it  stops  there  you  are  not  at 
liberty  to  go  further,  and  to  say  that  mere 
general  speculations  would  bear  you  out  in  a 


20      Neutral  Rights  and  Duties 

further  progress.  Thus,  for  instance,  on 
mere  general  principles  it  is  lawful  to  destroy 
your  enemy,  and  mere  general  principles 
make  no  great  difference  as  to  the  manner  by 
which  this  is  to  be  effected,  but  the  conven- 
tional law  of  mankind  which  is  evidenced  in 
their  practice  does  make  a  distinction  and 
allows  some  and  prohibits  other  modes  of 
destruction,  and  a  belligerent  is  bound  to 
confine  himself  to  those  modes  which  the 
common  practice  of  mankind  has  employed 
and  to  relinquish  those  which  the  same  prac- 
tice has  not  brought  within  the  ordinary 
exercise  of  war,  however  sanctioned  by  its 
principles  and  purposes." 

And  again,  with  special  reference  to  an 
American  precedent  in  the  day  of  our  begin- 
nings: "Wisely  did  the  American  Govern- 
ment defeat  a  similar  attempt  made  on  them 
at  an  earlier  period  of  the  war.  They  knew 
that  to  permit  such  an  exercise  of  the  rights 
of  war  within  their  cities  would  be  to  make 
their  coasts  a  station  of  hostility. " 

And  again,  with  direct  bearing  upon  the 


The  Doctrine  of  Search         21 

plea  that  has  recently  reached  Washington 
from  more  than  one  belligerent:  "The  true 
mode  of  correcting  the  irregular  practice  of  a 
nation  is  by  protesting  against  it  and  by 
inducing  that  country  to  reform  it.  It  is 
monstrous  to  suppose  that  because  one  coun- 
try has  been  guilty  of  an  irregularity  every 
other  country  is  let  loose  from  the  Law  of 
Nations  and  is  at  liberty  to  assume  as  much 
as  it  thinks  fit."  "Institutions  must  con- 
form to  the  text  law  and  likewise  to  constant 
usage  upon  the  matter.  " 

Here  are  statements  so  sound  and  reason- 
able that  eminent  text  writers  quote  them  as 
articulating  the  sense  of  the  nations. 

It  is  improbable  that  neutral  champions 
endeavoring  to  prevent  any  slipping  away 
from  such  custom  as  is  beneficent  can  find 
anything  more  applicable  with  which  to  meet 
the  argument  of  an  overreaching  belligerent. 
They  should  be  borne  in  mind  in  discussing 
the  limitation  of  belligerent  right  to  interfere 
with  neutral  shipping.  They  also  have  a 
direct  bearing  on  such  other  matters  touching 


22      Neutral  Rights  and  Duties 

the  rights  of  neutral  citizens  as  have  been 
forced  upon  public  attention  in  the  United 
States  by  the  unfortunate  incident  of  the 
Lusiiania. 


CHAPTER   IV 
THE  Lusitania  matter — non-combatants 

ON   MERCHANTMEN 

TV  TO  better  illustration  can  be  given  as  to 
^  ^  the  right  and  the  wrong  course  for  a 
neutral  to  pursue  at  a  moment  when  basic 
principles  are  under  discussion,  than  that 
furnished  by  the  resignation  of  Mr.  Bryan 
from  Mr.  Wilson's  Cabinet,  June,  1915. 

The  question  before  the  American  people, 
acting  not  only  for  themselves  but  in  the 
interests  of  the  race,  was — righteousness  or 
peace — which ! 

Mr.  Bryan  said  first  peace,  and  perhaps 
righteousness  if  a  court  provided  for  along 
lines  suggested  by  him  so  arranges.  The 
President,  with  clear  insight  into  the  hearts 
of  the  American  people,  said — righteousness 
first,  then  let  us  hope,  peace. 
23 


24      Neutral  Rights  and  Duties 

While  any  pacificist  ought  to  see  that  in  the 
eternal  order  of  things  Mr.  Bryan's  cast  of 
peace  conscientiously  suggested  could  only 
be  temporary  at  the  best,  it  is  dreadfully 
apparent  that  there  is  much  confusion  of 
thought. 

In  no  other  way  can  we  explain  the  regret 
recently  expressed  in  a  certain  part  of  the 
press,  which  affirmed  that  the  United  States 
by  standing  too  vigorously  for  principle  had 
lost  the  opportunity  to  lead  a  coalition  of 
neutrals  and  be  the  peacemaker  of  Europe. 

Because  of  this  befogged  condition  of 
the  public  mind — consistently  and  persist- 
ently bewildered  by  the  sociological  group 
that  anticipates  the  near  approach  of  the 
millennium — it  is  desirable  to  clearly  distin- 
guish issues  so  that  people  may  understand 
that  the  defense  of  neutral  rights  is  one  thing 
— the  inauguration  of  world  peace  another. 

This  being  done,  men  who  look  forward  to 
the  elimination  of  war  can  then  produce  such 
arguments  as  they  please  to  convert  to  their 
way  of  thinking  those  of  us  who  are  incorrigi- 


Non-Combatants  on  the  Seas    25 

ble  doubters  and  who  believe  that  there  are 
more  important  things  in  Hfe  than  the  attain- 
ment of  a  peaceful  status;  that  there  is  noth- 
ing in  the  moral  law  or  the  teachings  of  the 
founder  of  Christianity  that  prefers  dissimu- 
lation to  straightforwardness,  temporizing 
to  decision,  cowardice  to  intrepidity,  or  that 
there  is  no  better  way  for  this  generation  to 
assist  in  bettering  international  conditions 
than  by  endeavoring  to  secure  for  nations  at 
peace  (neutrals)  recognized  or  unrecognized 
rights  which  belong  to  them,  but  which  have 
heretofore  been  too  frequently  disregarded. 

Meantime  having  eliminated  such  matter 
as  is  irrelevant,  and  having  brought  home  to 
those  who  are  looking  for  light  the  fact  that, 
although  a  pacificist  may  be  a  neutral,  it  by 
no  means  follows  that  a  neutral  has  to  be  a 
pacificist,  those  who  look  for  progress  through 
the  broadening  and  extending  of  right  legal 
principles  can  take  up  the  matter  affecting 
neutral  rights  which  had  the  attention  of 
President  Wilson  at  the  time  of  Mr.  Bryan's 
resignation. 


26      Neutral  Rights  and  Duties 

In  doing  this  they  will  find  that  there  is  no 
question  or  doubt  about  the  existing  law  of 
nations  regarding  the  status  of  non-combat- 
ant individuals  traveling  upon  other  than 
war  vessels. 

Wrangle  as  the  nations  have  pleased  to 
about  free  goods,  free  ships,  visit,  search,  and 
contraband,  from  the  time  of  the  Consolato 
del  Mare  to  August,  1914,  they  have  been  in 
accord  regarding  human  life  on  the  high  seas. 

Thus  there  has  grown  up  a  body  of  positive 
laws,  buttressed,  fortified,  and  resting  upon 
foundations  which  include  the  appreciation 
of  natural  law  by  medieval  and  modern 
conscience,  the  conclusive  reasoning  of  the 
keenest  intellects,  and  the  formal  assent  of 
great  sovereignties. 

These  affirm  and  insist  that  the  non-com- 
batant, whether  neutral  or  enemy  (but 
emphatically  if  neutral),  is  to  be  protected  in 
every  exigency  which  may  arise  in  connection 
with  the  chase,  overhauling,  capture,  and  dis- 
position of  a  merchant  vessel,  unless  there  be 
such  resistance  on  the  part  of  the  carrying 


Non-Combatants  on  the  Seas    2^ 

ship,  after  full  warning,  as  will  justify  the 
man-of-war  in  taking  severe  measures  by 
way  of  self-defense,  or  in  order  to  compel 
obedience  to  its  demands.  They  cannot  be 
construed  otherwise  than  as  requiring  the 
captain  of  a  cruiser  or  other  national  craft 
to  use  every  resource  at  his  command  to 
avoid  the  endangering  or  destruction  of 
people  not  themselves  bearing  arms  or  in  the 
regular  service  of  the  enemy. 

With  the  law  thus  defined  and  available 
by  the  use  of  responsible  text-books  written 
in  any  of  the  great  modem  languages,  and 
with  the  facts  which  have  to  do  with  the 
matter  in  hand  (viz.,  the  loss  of  the  Lusitania) 
collated  and  published,  it  will  be  surprising 
if  such  inquiries  do  not  come  to  the  following 
conclusions : 

1.  That  this  is  a  case  where  natural  and 
positive  law  are  one,  the  decisions  of  courts 
keeping  pace  with  eternal  principles  of  justice 
and  equity,  and  therefore  not  to  be  lightly 
surrendered. 

2.  That  if  the  rights  thus  accorded  neutral 


28      Neutral  Rights  and  Duties 

citizens  be  infringed,  it  is  for  the  neutral 
state  to  take  action,  provided  it  is  desirable, 
as  seems  to  be  generally  believed,  that  neu- 
trals shall  take  an  increasing  part  in  the 
shaping  of  the  law  of  nations. 

3.  That  any  failure  on  the  part  of  the 
neutral  to  insist  upon  observance  of  a  law 
and  custom  which  thus  seriously  affects  it, 
or  the  substitution  of  such  a  scheme  as  was 
suggested  by  Mr.  Bryan,  would  not  only 
negative  neutral  influence  for  the  time  be- 
ing and  hereafter,  but  exalt  belligerency 
and  push  it  back  upon  the  throne  from 
which  it  has  sent  forth  so  many  bloody 
decrees. 

4.  That  at  a  time  when  the  engines 
of  destruction  are  becoming  more  fright- 
ful, any  cowardice  in  the  maintenance  of 
recognized  standards  will  permit  the  in- 
vasion of  peaceful  fields  by  a  new  cloud  of 
terror. 

In  that  case  a  plain  duty  will  follow,  to  take 
issue  with  the  recent  Secretary  of  State,  whose 
sincerity  is  not  impugned,  and  to  see  to  it 


Non-Combatants  on  the  Seas    29 

that  the  general  public  has  the  law  and  the 
facts  clearly  brought  to  its  attention. 

Our  democracy  cannot  live  without  discus- 
sion of  these  vital  things  which  have  to  do 
with  its  well  being.  Mr.  Bryan  himself  in  a 
late  publication  has  come  out  as  unequivocally 
endorsing  a  platform  already  assumed  in  these 
pages,  viz.,  it  is  for  neutrals,  not  belligerents, 
to  dictate  the  international  law  of  the  future. 
Perhaps  after  all  the  arguments  are  in  he  may 
be  brought  to  see  that  the  way  adopted  by 
the  President,  at  this  time  of  national  crisis, 
is  profoundly  in  the  interest  of  such  world 
peace  as  is  attainable. 

However  this  may  be,  with  right  matter 
put  properly  before  him,  it  seems  as  if  any 
American  of  good  understanding,  whether 
conscience-dulled  by  modern  vagaries  or  not, 
would  say  in  the  exigency  caused  by  the 
unhappy  loss  of  American  lives  by  belliger- 
ent usurpation : 

"There  is  but  one  choice,  unless  the  nation 
is  to  forfeit  rights  and  prove  recalcitrant. 
This  is — to  demand  a  discontinuance  of  a 


30      Neutral  Rights  and  Duties 

lawless  practice,  and  if  no  attention  be  given 
its  reasonable  representations,  to  take  such 
steps  as  may  seem  expedient  to  forcibly 
prevent  a  recurrence  of  the  offense." 


CHAPTER  V 

INCIDENTAL     RULES     AFFECTING     RIGHTS     OF 
NEUTRALS   ON  THE   SEA 

nPHE  thirteenth  convention  of  the  second 
-*       Hague  Conference  which  concerns  the 
rights  and  duties  of  neutral  Powers  in  naval 
war  contains  the  following: 

"These  rules  should  not,  in  principle,  be 
altered  in  the  course  of  the  war  by  a  neutral 
Power,  except  in  a  case  where  experience 
has  shown  the  necessity  for  such  change  to 
protect  the  rights  of  that  Power. " 

The  stipulation  should  be  borne  in  mind, 
otherwise  a  neutral  taking  advantage  of  an 
opportune  moment  to  win  that  which  has 
been  wrongfully  withheld,  may  put  itself  on 
a  par  with  belligerents  which  are  heedless  in 
regard  to  international  law  when  it  suits  their 
convenience. 

31 


32      Neutral  Rights  and  Duties 

Thus  fortified  in  prudence  one  can  safely 
take  notice  of  certain  belligerent  practices 
on  the  high  seas  which  are  frequently  over- 
looked in  the  consideration  of  major  matters 
regarding  search,  the  duty  owed  neutral 
travelers  on  merchantmen,  contraband,  and 
blockade. 

Among  the  most  important  of  these  are: 
The  practice  of  claiming  that  enemy  goods 
continue  enemy  after  sale  to  a  neutral;  the 
practice  of  treating  vessels  employed  or 
leased  by  a  belligerent  for  the  purpose  of 
victualling  an  enemy  garrison  or  fleet,  or  the 
performance  of  kindred  services,  as  lawful 
prize ;  the  practice  of  seizing  neutral  goods  in 
enemy  ships  when  the  same  have  what  is 
briefly  designated  as  enemy  character. 

Certain  of  these  rules  which  favor  the  bel- 
ligerent rather  than  the  neutral  are  fair, 
others  are  not.  Some  are  grounded  on  wrong 
premises — none  have  had  the  attention  they 
deserve. 

For  the  present,  however,  they  should  be 
the  subject  of  keen  analysis  rather  than  of 


Incidental  Sea  Rules  33 

action,  because  the  law,  whether  it  be  equita- 
ble or  otherwise,  is  fairly  well  defined,  and 
nations  at  war  may  properly  plead  that  the 
time  is  not  convenient  to  suggest  readjust- 
ment. 

Bearing  in  mind,  then,  the  fact  that  the 
discussion  of  certain  matters  with  a  view  to- 
ward immediate  correction  is  tabooed  during 
the  continuance  of  hostilities,  we  come  to  the 
consideration  of  aggressive  belligerent  acts 
which  injure  a  neutral  and  for  which  there  is 
insufficient  warrant. 

These  may  be  classified  under  three  heads, 
and  briefly  reviewed  without  considering  the 
application  of  this  grouping  to  a  wider  field 
than  that  which  is  represented  by  such  neu- 
tral interests  on  the  high  seas  as  cannot  be 
more  conveniently  treated  elsewhere. 

Class  I.  includes  acts  which  give  ample 
opportunity  for  protest,  formal  representa- 
tion, and  recommendation.  This  is  because 
the  law  governing  them  is  unsettled.  Among 
these  will  be  found  cases  which  the  conferees 
in  the  London  Convention  found  it  impossible 


34      Neutral  Rights  and  Duties 

to  dispose  of,  and  in  which  the  rules  proffered 
were  neither  accepted  nor  rejected. 

For  instance,  if  neutral  goods  are  found  in 
the  country  of  a  belligerent  at  the  opening  of 
a  war,  under  the  French  rule  they  take  char- 
acter according  to  the  nationality  of  the 
owner,  while  by  the  English  doctrine  their 
status  is  determined  by  the  locus. 

Here  are  two  radically  different  theories 
which  may  affect  merchandise  which  is  later 
shipped  in  enemy  vessels. 

So  far  the  nations  have  been  unable  to  get 
together  on  common  ground.  The  whole 
matter  is  therefore  open  for  neutral  comment, 
and  the  exercise  of  neutral  influence.  So  is 
it  in  the  matter  of  enemy  trade  jealously 
guarded  by  a  warring  nation  during  the  days 
when  its  commercial  interests  had  first  atten- 
tion. There  is  a  doctrine  affirmed  by  some, 
denied  by  others,  that  inasmuch  as  the  par- 
ticular trade  in  question  is  vital  to  the  bellig- 
erent, neutrals  which  see  fit  to  enter  into  the 
same  lose  their  character  of  impartiality 
and  must  suffer  accordingly.     Here  again  is 


Incidental  Sea  Rules  35 

a  fair  field  for  the  neutral.  Nothing  is  so 
settled  and  defined  as  to  preclude  a  sagacious 
Power  from  exercising  its  diplomacy  in  such 
a  manner  as  will  secure  lasting  results. 

Further  instance  is  hardly  needed  by  way 
of  illustration. 

What  we  are  to  bear  in  mind  is  this,  viz., 
that  when  there  has  been  affirmation  pro  and 
con,  whether  by  courts  or  international  pub- 
licists of  reputation,  the  neutral  is  accorded 
an  opportunity  to  play  a  distinguished  part 
in  the  shaping  of  international  law. 

Class  II.  comprehends  acts  which  are  with- 
out precedent,  but  which  may  themselves  be- 
come precedents  and  endanger  neutral  rights 
in  the  future  if  permitted  to  pass  unnoticed. 

One  does  not  have  to  go  far  for  examples  in 
days  when  the  ingenuity  of  man  is  devising 
engines  of  war  to  prowl  beneath  the  sea  and 
in  the  firmament  above.  Such  departures  are 
of  immense  significance  to  belligerents  as  well 
as  neutrals,  and  should,  with  a  view  to  the 
future,  be  considered  as  carefully  by  them 
as  by  non-combatants. 


36      Neutral  Rights  and  Duties 

It  goes  without  saying,  however,  that  the 
onus  of  seeing  that  novel  war  measures  are 
in  accord  with  natural  law  rests  upon  neu- 
trals, and  that  they  will  be  looked  upon  solely 
with  regard  to  the  military  necessity  of  the 
hour  by  peoples  who  believe  they  are  fighting 
for  national  existence.  This  is  true  even 
when  it  is  suicidal  for  a  belligerent  to  cham- 
pion an  erroneous  practice. 

Thus  Germany  by  her  use  of  the  submarine, 
and  with  an  eye  to  providing  an  offset  to 
Great  Britain's  broadened  theory  of  war 
zones,  may  be  said  to  be  thrusting  a  knife 
into  her  own  vitals  by  teaching  maritime 
nations  how  they  may  spread  their  rule  at 
sea  with  smaller  cost  to  themselves.  Indeed, 
the  Kaiser's  Government  has  given  the  im- 
pression that  it  may  go  further  and  refuse 
the  rational  and  necessary  requests  of  the 
United  States.  A  thing  which,  if  actually 
done,  will  furnish  Great  Britain  and  her 
colonies,  should  she  be  victorious,  with  a 
precedent  that  may  hereafter  cause  Ger- 
many's undoing. 


Incidental  Sea  Rules  37 

This  case,  with  which  everyone  is  famiHar 
in  these  days  of  stress,  is  only  one  of  many 
that  might  be  cited  to  show  the  inabiHty  of 
the  belHgerents  to  look  after  their  ultimate 
interests  under  the  pressure  of  war. 

Neutral  states  must  therefore  expect  to  go 
on  record  in  such  manner  as  will  protect  not 
only  their  own  rights,  but  those  of  humanity. 
In  declining  to  do  this  they  assume  great 
responsibility.  On  the  other  hand  if  they 
perform  that  which  must  be  regarded  as  a 
duty  of  the  most  primary  sort,  it  will  not  be 
at  all  astonishing  if  they  find  themselves  later 
supported — and  stanchly  too — by  nations 
whose  eyes  are  for  the  present  holden  that 
they  cannot  see. 

Class  III.  comprises  acts  which  justify 
action  because  they  constitute  a  breach  of  the 
law  which  safeguards  the  neutral. 

' '  Gentlemen  may  cry — Peace —  Peace, " 
but  there  can  be  no  peace  for  humanity  as 
long  as  the  neutral  allows  such  matters  to 
pass  unnoticed.  Leagues  to  enforce  peace 
may  be  admirable,  but  will  ever  prove  insuf- 

1604.89 


38      Neutral  Rights  and  Duties 

ficent  without  moral  stamina,  and  there  is  no 
moral  stamina  when  a  strong  neutral  nation 
permits  itself,  its  people,  and  human  rights 
to  be  trodden  under  foot  in  defiance  of  estab- 
lished law. 


CHAPTER  VI 

CONVOY 

\ /ERY  little  has  been  said  in  connection 
with  the  complications  caused  neutral 
shipping  by  British  Orders  in  Council,  about 
convoy.  Why?  Perhaps  because  the  un- 
usual blockade  now  being  enforced  against 
the  central  Powers  of  Europe  comprehends 
the  shutting  off  of  enemy  exports  through 
neutral  countries  as  well  as  imports,  and 
makes  such  a  provision  embarrassing.  For 
while  it  is  possible  that  convoy  might  be 
arranged  in  the  interest  of  merchant  fleets 
sailing  from  neutral  ports  that  are  within 
the  British  zone,  the  matter  would  be  a  diffi- 
cult one,  and  precedents  are  not  available. 
However  this  may  be,  it  cannot  be  denied 
that  if  the  use  of  convoy  (whether  lim- 
ited or  not)  can  be  made  to  modify  any 
39 


40      Neutral  Rights  and  Duties 

phase  of  a  trying  situation,  it  should  be 
introduced. 

No  neutral  is  going  to  take  up  arms  against 
Great  Britain  until  it  is  better  satisfied  that 
her  theory  of  blockade  is  as  indefensible  as 
it  is  now  believed  to  be.  Meantime  and 
during  the  exchange  of  diplomatic  notes,  it 
is  conceivable  that  effort  may  properly  and 
advantageously  be  made  along  the  line  of 
providing  men-of-war  as  escorts,  and  other- 
wise, to  eliminate  causes  of  friction  which  are 
arising  as  a  result  of  that  blockade. 

One  of  these  causes  is  the  transshipment 
of  cargoes  so  that  goods  consigned  by  a 
neutral  to  a  neutral  reach  a  belligerent.  The 
British  ministry,  with  a  color  of  right  because 
of  the  law  laid  down  by  United  States  as  well 
as  British  courts,  and  because  the  neutral 
countries  next  adjacent  to  Germany  are 
piling  up  supplies  until  they  have  reached  a 
bulk  far  beyond  their  domestic  needs,  is 
interfering  with  neutral  intercourse.  They 
plead  that  if  they  failed  to  do  this,  their 
blockade  would  be  ineffective,  and  that  the 


Convoy  41 

surplusage  of  the  merchandise  delivered  in 
Denmark,  Holland,  and  Scandinavia  has  an 
enemy  destination. 

To  their  argument  an  exporting  neutral 
may  well  reply:  "We  admit  that  you  are  not 
altogether  without  grounds  for  your  sus- 
picions; meantime  your  practice,  aside  from 
your  inadmissible  theories  of  blockade  and 
contraband,  constitutes  a  real  grievance  to  a 
friendly  Power.  We  therefore  propose  here- 
after to  send  ships  in  the  North  Sea  trade 
under  convoy  of  war  vessels,  admitting  none 
to  the  protected  fleet  except  carriers  whose 
trade  is  legitimate." 

It  is  submitted  that  such  a  communication, 
properly  followed  up,  even  if  it  failed  to 
bring  a  favorable  reply,  would  leave  his 
Britannic  Majesty  without  further  excuse 
for  meddling  with  such  trading  between 
neutrals  as  is  usual  and  proper.  This  is 
because  even  British  statesmen,  with  their 
traditions  of  ocean  overlordship,  must 
recognize  the  fact  that  the  guaranty  of  a 
neutral  government  cannot  be  gainsaid  with- 


42      Neutral  Rights  and  Duties 

out  offense  more  serious  than  the  difficulty 
they  are  trying  to  meet.  They  have  already 
gone  on  record  in  the  London  Convention  in 
favor  of  such  practice — a  mighty  concession — 
and  know  that  those  who  advocate  it  are 
thinking  clearly  and  logically.  Therefore 
even  should  they  claim  that  the  London  Con- 
vention was  inoperative,  they  could  hardly 
by  so  doing  escape  the  charge  of  being  disin- 
genuous and  unfair. 

Whether  or  not  such  a  proposition  on 
behalf  of  a  neutral  during  the  present  war 
is  feasible  or  desirable,  depends  upon  facts 
which  are  not  apparent  to  the  unofficial 
observer.  Meantime  no  discussion  of  neutral 
rights  and  duties  ought  to  overlook  reference 
to  a  custom  that  through  neutral  persistence 
promises  to  harden  into  law. 

It  was  in  1653  that  Sweden,  in  a  similar 
predicament,  because  of  war  between  the 
Netherlands  and  Great  Britain,  to  that  in 
which  she  now  finds  herself,  urged  that 
belligerents  should  waive  rights  of  visitation 
in  case  of  convoy,  provided  the  commander 


Convoy  43 

of  the  latter  gave  proper  guaranties.  Sweden 
was  on  safe  ground  although  the  peace  of 
Westminster  made  it  unnecessary  to  pursue 
the  matter  at  that  time.  She  was  claiming 
something  inherent  in  her  as  a  sovereignty, 
viz.,  a  right  to  officially  administer  and  say 
the  final  word  in  regard  to  her  own  subjects 
and  their  belongings  when  on  the  high  seas, 
and  particularly  when  under  the  guns  of 
a  government  ship.  Whether  or  not  she 
carried  conviction  to  other  cabinets  at  the 
time  is  doubtful,  but  it  is  a  most  interesting 
fact  that  the  Netherlands,  involved  as  a 
belligerent  in  1653  but  a  neutral  in  1756,  was 
pushing  the  same  contention  a  hundred 
years  later.  This  indicates  that  the  latter 
country  was  impressed.  Indeed  evidence  of 
this  is  cumulative,  for  in  1781  the  Nether- 
lands, again  fighting  with  Great  Britain,  made 
it  a  point  to  give  convoy  full  belligerent 
recognition.  By  this  time  "convoy"  was  no 
longer  a  new  proposition  for  the  avoidance 
of  ruthless  visitation  and  search. 

Prior    to    1800,  treaties    recognizing    the 


44      Neutral  Rights  and  Duties 

authority  of  a  warship  convoying  ordinary 
carriers  had  been  signed  by  the  United 
States  and  all  of  the  great  Powers  now  at 
war  except  Great  Britain  and  Italy,  and  the 
practice  was  well  under  way  toward  receiv- 
ing the  standing  in  international  law  which 
belongs  to  it.  Great  Britain,  however,  was 
not  complaisant,  and  her  concessions  were  so 
grudgingly  given  as  to  discourage  continental 
critics.  Indeed,  if  it  had  not  been  for  the 
Naval  Conference  at  London  in  1908-9,  it  is 
probable  that  she  would  still  be  in  the  position 
of  a  dissenter  and  obstructionist. 

The  struggle  over  the  inviolability  of  a 
convoyed  merchantman  is  synchronous  with 
the  slow  emergence  of  neutrals  as  sovereign- 
ties having  a  part  in  the  progress  of  the 
nations.  As  the  law  now  stands,  if  we  regard 
the  unratified  London  Convention  as  most 
nearly  summarizing  the  best  thought  of  the 
hour,  as  well  as  reflecting  the  weight  of 
authority  in  regard  to  maritime  affairs,  neu- 
tral vessels  are  immune  when  under  convoy. 
Great  Britain  may  undoubtedly  claim  that 


Convoy  45 

she  is  not  acquiescent  because  of  the  infor- 
mality of  the  London  agreement.  This  does 
not  seem  probable.  If  it  were,  neutral  nations 
should  refuse  to  relax  a  rule  which  has  been 
sufficiently  endorsed  and  which  is  based  on  a 
reasonable  theory.  The  time  has  gone  by 
when  a  neutral  merchantman  can  be  cut 
out  with  warrant  from  under  the  guns  of  a 
government  ship.  Let  the  belligerent  com- 
mander harbor  such  suspicions  as  he  may, 
there  is  no  overruling  the  decision  or  report 
of  the  captain  of  the  protecting  war  vessel 
except  by  referring  the  matter  to  the  bel- 
ligerent government  concerned.  This  may 
take  such  action  as  it  pleases.  That  is  a 
secondary  condition.  The  significant  fact  is 
that  with  the  shifting  of  the  issue  from  the 
high  seas  to  the  cabinet,  unjustifiable  usurpa- 
tion of  authority  is  discouraged  and  the  rights 
of  sovereignty  vindicated. 

Convoy  was  once  a  phrase  that  was  not 
unfamiliar  in  maritime  countries.  It  has 
fallen  into  disuse.  Whether  or  not  war 
conditions  will  bring  it  into  the  fore  again 


46      Neutral  Rights  and  Duties 

remains  to  be  seen.  Meanwhile  reference  to 
the  custom  is  of  value  for  two  reasons : 

(i)  The  reader  can  hardly  select  an  inter- 
national question  of  moment  which  better 
illustrates  the  manner  in  which  neutral 
Powers  have  laboriously  but  successfully 
pushed  their  claims  upon  the  attention  of 
warring  nations;  (2)  the  claim  that  a  convoy- 
ing warship  represents  its  government  for 
the  purpose  of  the  moment  is  a  formal 
demand  for  the  recognition  of  sovereignty  in 
the  great  spaces  of  the  globe  which  are  not 
subject  to  dominion.  As  such  it  suggests  an 
era  which  may  not  be  as  distant  as  pessimists 
insist,  when  the  neutral  merchant  vessel, 
outside  home  and  belligerent  waters  alike, 
and  still  on  the  high  seas,  shall  be  regarded  as 
a  part  of  the  country  from  which  it  sailed, 
and  free,  except  for  international  police 
surveillance,  to  control  its  own  movements. 

Not  so  many  years  gone  by  Great  Britain, 
as  alleged  mistress  of  the  seas,  did  not  hesitate 
to  visit  and  search  a  neutral  warship.  She 
has  made  great  concessions  in  the  interest  of 


Convoy  47 

international  law  since  those  days.  Whether 
or  not  she  will  make  more  in  the  near  future 
depends  both  upon  the  wisdom  and  firmness 
of  the  United  States  and  other  neutral  gov- 
ernments, and  the  consistency  of  the  great 
countries  with  which  she  has  joined  battle. 


CHAPTER  VII 

AVOIDANCE  OF   FALSE  ISSUES — EXPERT    SER- 
VICE FOR  THE  PRESS 

HTHE  path  of  a  neutral  is  difficult  enough 
•*•  in  these  days  of  stress  without  adding 
to  its  perplexities.  At  the  best,  its  duties  are 
not  easy  to  perform  and  its  rights  are  hard 
to  maintain.  Notwithstanding  this  there 
are  numberless  journalists  who  insist  upon 
stirring  the  neutral  people  of  the  United 
States  with  false  as  well  as  real  issues. 

No  better  instance  can  be  cited  than  that 
of  the  Armenian.  Whatever  the  official  re- 
port may  later  show,  the  story  which  first 
reached  the  news  centers  contained  no  ele- 
ment that  made  the  sinking  of  the  freighter 
parallel  the  case  of  the  Lusitania.  This  in  no 
way   discouraged   the  press.     Even  papers 

that    are    carefully    edited    informed    their 
48 


Avoidance  of  False  Issues      49 

readers  that  there  was  cause  for  apprehen- 
sion in  the  fact  that  Germany  was  continuing 
the  illegal  use  of  the  submarine  as  if  no  pro- 
test had  been  made.  Yellow  journals  went 
further.  To  their  mind  the  sinking  of  the 
Armenian  took  the  place  of  a  diplomatic  note. 
It  was  Germany's  way  of  saying,  "We  ac- 
cept your  implied  challenge  and  join  issue. 
Hereafter  we  shall  continue  to  destroy 
merchant  ships  and  non-combatants  at  our 
pleasure.  If  Americans  happen  to  be  in- 
volved, so  much  the  worse  for  them. " 

People  who  are  informed  and  who  reason 
carefully  from  premise  to  conclusion  were 
naturally  not  deceived. 

According  to  the  published  account  the 
Armenian  was:  (i)  Carrying  freight  rather 
than  passengers;  (2)  conveying  mules  direct 
to  the  British  or  allied  armies;  (3)  under 
charter  to  the  British  Government,  or  in  its 
direct  service,  whether  the  relation  was  that 
arising  by  requisition  or  contract;  (4)  prob- 
ably officered  by  the  British  Government; 
(5)  the  meager  returns  at  hand  failed  to  state 


50      Neutral  Rights  and  Duties 

whether  the  destroyed  ship  had  attempted  to 
escape  or  had  offered  resistance,  and  without 
such  data  the  spirit  of  fair  play  required  a 
suspension  of  judgment. 

Thus  the  tale  carried  in  itself  elements 
which  refuted  the  suggestions  which  editors 
were  pleased  to  make,  and  the  latter  would 
have  been  harmless  if  the  ordinary  reader 
were  trained  to  logical  thinking.  Unfor- 
tunately the  ordinary  reader  is  neither 
thoughtful  nor  logical,  however  estimable  he 
or  she  may  be  in  character  or  disposition. 
Nor  is  this  in  itself  a  reproach.  Such  is  the 
speed  and  tension  of  modern  life  that  much 
has  to  be  taken  for  granted  by  those  who  are 
inclined  to  be  meditative.  How  can  it  be 
otherwise  with  people  who  are  without  such 
tendency? 

To  a  large  part  of  the  public  therefore  the 
suggestion  that  the  killing  of  Americans  on 
the  Armenian  was  a  bit  of  outrageous  bel- 
ligerent impudence  outweighed  the  narrative 
itself.  It  was  fortunate  that  the  incident 
happened  at  a  time  when  the  country  was 


Avoidance  of  False  Issues      51 

confident  that  the  President  and  the  Depart- 
ment of  State  were  zealously  guarding  its 
interests  in  the  very  matter  which  was  thus 
brought  to  its  attention.  Otherwise  results 
might  have  been  as  serious  as  they  are  bound 
to  be  in  the  future,  if  more  restraint  and 
good  sense  is  not  shown  by  those  who  are 
the  purveyors  of  news. 

War  is  a  terrific  proposition,  upsetting  the 
economic  affairs  of  neutrals  as  well  as  bel- 
ligerents, and  in  direct  proportion  to  its 
f rightfulness.  Although  not  directly  engaged 
neutrals  are  thus  of  it.  It  follows  that 
though  there  is  a  difference  in  degree,  their 
affairs,  whenever  there  is  contact  with 
warring  nations,  require  the  sam.e  nicety  of 
attention  as  do  those  of  the  belligerent.  If 
the  latter  have  censors  who  are  authorized 
to  forbid  the  printing  of  matter  which  will 
endanger  the  state,  why  should  not  neutral 
governments,  at  least,  see  to  it  that  their 
news  agencies  have  the  benefit  of  such  trained 
official  cooperation  as  will  eliminate  unjusti- 
fiable constructions  that  often  accompany 


52      Neutral  Rights  and  Duties 

war  cables?  Such  an  arrangement  need  not 
trammel  the  press  nor  curtail  its  freedom. 
That  it  already  exists  in  some  loose  manner  is 
evidenced  by  the  familiar  paragraph,  "It  is 
pointed  out  in  administration  circles"  which 
occurs  in  metropolitan  journals  as  well  as 
country  sheets  on  the  morning  following  an 
episode  of  international  importance. 

The  adoption  of  a  few  simple  measures 
bringing  a  government  expert  in  touch  with 
the  editor  would  not  only  make  such  para- 
graphs as  hazard  a  guess  at  the  law,  authori- 
tative, but  would  keep  the  public  from  that 
sort  of  erratic  and  unreasonable  action  which 
is  fraught  with  peril. 

We  have  seen  how  the  story  of  the  Arme- 
nian as  first  retailed  gave  no  possible  ground 
for  the  heavy  leaded  headings  in  the  news- 
paper columns  of  the  United  States,  and 
have  noted  how  injudicious  it  is  for  patriotic 
journals  to  add  to  the  real  problems  that  their 
country  is  desirous  of  solving. 

There  is  another  lesson  which  is  furnished 
by  the  incident  to  those  who  are  not  un- 


Avoidance  of  False  Issues      53 

willing  to  learn.  This  has  to  do  with  the 
animus  of  a  neutral  toward  either  belligerent 
in  matters  which  have  to  do  with  the  conduct 
of  the  war.  States  in  conflict  have  undoubted 
rights  in  the  matter  of  hostilities,  and  may 
reasonably  expect  that  a  neutral  should 
recognize  this  in  just  the  same  manner  that 
it  exacts  consideration  for  claims  which  more 
particularly  concern  it.  Indeed  a  personified 
belligerent  may  properly  argue — "Within  a 
short  time  you  who  are  now  a  neutral  nation 
may  be  swept  into  the  vortex  of  war.  When 
that  day  comes  you  will  need  to  have  your 
hands  free,  and  to  take  advantage  of  every 
fair  means  to  protect  your  interests.  For 
that  reason  you  must  be  careful  not  to  permit 
any  prejudice,  however  slight,  to  call  forth 
unjust  criticism  because  a  blow  given  in  open 
battle  affects  your  personal  interests.  Other- 
wise you  will  be  gravely  handicapped,  first 
by  rousing  resentment  on  the  part  of  a  nation 
from  which  concession  is  desired,  and  second, 
by  making  it  awkward  for  yourself  when  your 
time  comes  to  buckle  on  the  harness."      It 


54      Neutral  Rights  and  Duties 

has  already  been  shown  how  necessary  it  is 
that  a  neutral  which  expects  to  maintain  its 
rights  should  be  careful  to  observe  its  obliga- 
tions. Due  consideration,  and  a  few  experi- 
ences like  that  adverted  to,  must  bring  home 
to  us  the  further  truth,  that  a  nation  which 
lacks  poise  and  balance,  that  mistakes 
ordinary  episodes  for  affronts,  will  foul  its 
own  nest  and  can  never  hope  to  serve 
humanity  in  the  way  of  progress. 

On  the  supposition  that  the  Armenian  was 
either  in  the  direct  pay  of  the  British  Ad- 
miralty, or,  if  not  in  such  service,  refused  to 
respond  to  the  hail  of  a  war  vessel,  whether 
submarine  or  otherwise,  there  is  not  a  word 
which  can  fairly  be  said  in  criticism  of  a 
succeeding  attack,  provided  the  recognized 
rules  of  war  were  not  violated.  Nor  does  the 
presence  of  American  neutrals  change  the 
situation  in  the  slightest.  If  the  facts  are 
otherwise,  conclusions  will  also  differ  corre- 
spondingly. Meanwhile  as  a  neutral  country 
the  United  States  should  banish  any  halluci- 
nation as  to   the  probable  treatment    that 


Avoidance  of  False  Issues      55 

belligerent  men-of-war  will  accord  supply 
ships  which  refuse  to  permit  visitation  or 
capture.  They  are  not  going  to  circle  about 
the  transgressing  freighter,  protesting  through 
a  speaking  trumpet  or  otherwise  until  the 
vessel  is  safe  in  port.  To  the  contrary,  they 
are  sure  to  deal  vigorously  as  the  occasion 
seems  to  require.  It  is  probable  that  Ameri- 
can citizens  in  general  do  not  understand  the 
clear  distinction  which  exists  between  an 
ordinary  freighter,  especially  when  attached 
to  the  naval  service,  and  a  passenger  steam- 
ship. It  is  also  not  unreasonable  to  suppose 
that  they  are  ignorant  of  a  warship's  right  to 
compel  visitation. 

Inasmuch  as  such  lack  of  knowledge  may 
involve  them  in  catastrophes,  effort  should 
be  made  to  provide  for  their  instruction. 
Whether  or  not  this  is  done,  the  nation  should 
leam  to  accept  the  fortunes  of  those  who 
enter  any  sort  of  enemy  service,  as  something 
which  is  not  a  national  concern. 


CHAPTER  VIII 

BELLIGERENT  USE  OF  NEUTRAL  FLAGS 

WHEN  reference  is  made  to  neutral 
rights  and  privileges  there  is  sure 
to  be  critical  remark  in  regard  to  the  use  of 
neutral  flags  by  belligerent  merchantmen. 
Much  of  this  is  most  regrettable  because 
unreasonable.  The  keener  the  people  of  the 
United  States  are  to  preserve  high  standards 
of  neutrality,  the  more  careful  should  they 
be  to  eliminate  from  their  program  the 
requirement  of  anything  that  is  patently 
impracticable. 

In  a  democracy  like  the  United  States  the 
inculcation  of  love  and  respect  for  the  Stars 
and  Stripes  as  the  national  standard  binds 
a  people,  rapidly  becoming  heterogeneous, 
together.     Too  much   emphasis   cannot   be 

given  to  its  proper  encouragement.     Mean- 
56 


Use  of  Neutral  Flags  57 

time  it  is  probable  that  the  enactment  of  a 
statute  like  the  flag  law  of  Massachusetts 
has  an  effect  directly  opposite  to  that  which 
is  intended.  This  hysterical  bit  of  legislation 
fairly  interpreted  makes  it  a  lawless  act  for 
a  citizen  to  own  an  unabridged  dictionary 
which  contains  a  plate  with  the  flags  of  all 
nations.  The  latter  can  have  a  British  or 
German  flag  printed  or  engraved  upon  his 
letter  heads,  but  must  beware  the  use  of  any 
imprint  of  the  American  flag  even  though  it  is 
attached  to  an  appeal  to  support  the  Federal 
Constitution.  The  instance  is  given  as  fairly 
illustrative  of  the  harm  that  well-meaning 
folk  can  do  when  the  end  they  seek  is  ad- 
mirable. 

As  to  the  use  of  the  American  flag  or  any 
neutral  flag  by  belligerents,  and  regarding 
the  limit  of  sane  criticism,  doubtless  such  a 
use  is  improper  and  undesirable  in  the  usual 
course  of  affairs.  Under  the  law  of  nations 
and  in  accord  with  the  eternal  fitness  of 
things  such  a  custom  can  be  and  should  be 
peremptorily  forbidden.    The  Government  of 


58      Neutral  Rights  and  Duties 

Great  Britain,  against  which  censure  is  at 
present  directed  for  misuse  of  neutral  flags, 
is  acquiescent  in  this.  Thus  Sir  Robert 
Phillimore,  vol.  iii.,  p.  734,  gives  numerous 
references  to  the  Admiralty  reports  to  show 
that  ships  are  deemed  to  belong  to  the  country 
under  whose  flag  they  navigate,  and  Oppen- 
heim,  vol.  i.,  p.  336,  is  unequivocal.  "It  is 
another  universally  recognized  rule, "  he  says, 
"that  men-of-war  of  every  state  may  seize 
and  bring  to  a  port  of  their  own  for  punish- 
ment any  foreign  vessel  sailing  under  the  flag 
of  such  state  without  authority."  Oppen- 
heim  also  calls  attention  to  the  Merchant 
Shipping  Act  of  1894,  which  legislates  to  the 
same  end.  That  act,  however,  goes  further 
and  may  well  be  referred  to  here  as  con- 
veniently introducing  a  notable  exception  to 
the  general  rule.  This  exception,  apparently 
based  upon  the  same  international  law  which 
has  heretofore  recognized  the  use  of  neutral 
or  enemy  flags  as  a  subterfuge  by  belligerent 
warships,  is  one  that  is  directly  applicable 
to  the  present  issue  affecting  the  use  of  the 


Use  of  Neutral  Flags  59 

American  flag,  and,  if  valid,  should  be  given 
the  greatest  weight. 

After  stating  that  a  ship  shall  be  forfeited 
whose  owners,  without  warrant,  fly  the 
British  flag,  the  act  continues:  "Unless  the 
assumption  has  been  made  for  the  purpose  of 
escaping  capture  by  an  enemy  or  by  a  foreign 
ship  of  war  in  the  exercise  of  some  belHgerent 
right. "  When  it  is  remembered  that  the  act 
in  question  dates  back  twenty  years  before 
the  present  war,  that  it  was  the  authoritative 
expression  of  a  nation  which  had  won  for 
itself  the  title  "Mistress  of  the  Seas,"  and 
that  it  may  properly  be  construed  as  opposed 
to  her  own  interests,  we  are  inclined  to  accept 
it  as  an  unbiased  expression  of  the  reasonable 
judgment  of  a  people  versed  in  Admiralty 
affairs  and  entitled  to  serious  consideration  as 
such.  Whether  or  not  this  marked  departure 
from  custom  is  worthy  of  adoption  as  a  rule 
of  international  law  is  another  matter. 

Sir  Edward  Grey  under  date  of  February  19, 
1915,  handed  the  United  States  Ambassador 
in   London  a  note  for  transmission  to  the 


6o      Neutral  Rights  and  Duties 

United  States  in  which  he  expressed  himself 
as  believing  that  the  British  practice  was 
similar  to  that  recognized  by  some  other 
nations  and  "forbidden"  by  none.  If  he  is 
right,  there  is  certainly  much  to  be  said  on 
the  side  of  those  who  favor  this  usage,  and 
distinct  reasons  why  a  neutral  people,  during 
a  time  of  flux  in  which  it  will  be  difficult  to 
secure  any  agreement  on  the  part  of  belliger- 
ents, should  be  cautious  in  arrogating  to 
themselves  a  right  which  may  lead  them  into 
inextricable  complications.  This  does  not 
mean  that  they  or  their  government  should 
not  make  recommendations.  It  was  mani- 
festly proper  for  Washington  under  date  of 
February  lo,  191 5,  and  after  the  German 
Admiralty  declaration  of  February  4th,  to 
suggest  the  "serious  consequences"  to  Ameri- 
can vessels  that  might  follow  the  British 
Government's  authorization  of  the  use  of 
neutral  flags.  It  was  also  strictly  correct  for 
President  Wilson's  Administration  to  ask 
both  Germany  and  Great  Britain  under  date 
of  February  20th  * '  to  require  their  respective 


Use  of  Neutral  Flags  6i 

merchant  vessels  not  to  use  neutral  flags  for 
the  purpose  of  disguise,  or  ruse  de  guerre. " 

Had  this  proposition  been  cordially  re- 
ceived and  acted  upon,  it  would  undoubtedly 
have  been  for  the  direct  advantage  of  Ameri- 
can shipping.  Meantime  while  such  repre- 
sentations are  most  fitting,  it  is  exceedingly 
doubtful  if  a  neutral  government  can  judi- 
ciously push  very  far  beyond  the  limit  which 
is  thus  suggested  because  of  the  personal 
rather  than  national  character  of  the  offense. 

Circumstances  and  ministerial  correspond- 
ence since  the  opening  of  this  latest,  if 
not  greatest,  of  all  wars,  have  developed 
three  phases  of  the  question:  (i)  that  which 
has  to  do  with  the  several  and  specific  cases 
in  which  misuse  of  the  flag  is  alleged;  (2) 
that  which  is  suggested  by  the  United  States 
Government  in  its  proposal  that  belligerents 
require  their  respective  merchant  vessels  not 
to  use  neutral  flags,  etc.;  (3)  that  which 
arises  because  of  the  claim  that  the  British 
Government  has  instructed  its  merchant 
fleet  to  fly  neutral  flags  in  the  zone  patrolled 


62      Neutral  Rights  and  Duties 

by  German  submarines.  Of  the  three  only 
one,  and  that  the  last,  appears  to  be  of  a 
sufficiently  objectionable  character  to  warrant 
a  breach  of  amicable  relations. 

It  is  quite  conceivable  that  a  neutral  might, 
with  some  spirit,  resent  such  orders  as  those 
which  appear  to  have  been  given  by  Great 
Britain  to  ships  of  her  great  commercial  fleet, 
ij  the  instructions  were  persisted  in  after 
protest.  This  is  because  the  belligerent  ag- 
gression would  be  as  positive  and  direct  as  if 
neutral  territory  were  violated,  and  because 
a  responsible  government  can  be  readily 
called  to  account  for  the  wrong  done. 

The  second  phase,  that  which  arises  when 
a  belligerent  government  fails  to  comply  with 
a  neutral  request  that  it  officially  forbid  the 
use  of  a  neutral  flag,  may  be  deemed  another 
matter. 

Without  the  evidence  of  positive  admiralty 
orders  to  commit  a  breach  of  international 
comity,  a  neutral  is  not  justified  in  presuming 
that  a  belligerent  government  is  responsible 
for  the  defaults  of  its  subjects.     The  same 


Use  of  Neutral  Flags  63 

will  be  true,  whether  or  not  the  aforesaid 
belligerent  refuses  to  send  out  manifestoes 
which  are  in  accord  with  the  formally 
expressed  wishes  of  the  neutral.  To  argue 
that  noncompliance  is  an  unfriendly  act,  and 
to  threaten  reprisals  as  a  consequence,  would 
hardly  accord  with  the  dignity  of  the  dis- 
comfited Power  or  serve  its  own  interests. 
This  being  conceded,  how  impossible  appears 
the  task  of  satisfactorily  meeting  and  dis- 
couraging such  individual  practices  in  using  a 
neutral  flag  when  imperiled  as  are  grouped 
under  the  first  phase  of  the  question  now  so 
seriously  debated. 

Let  us  for  the  moment  presume  that  the 
United  States  intends  to  discourage  the  im- 
proper use  of  its  flag  by  belligerent  merchant- 
men— that  Great  Britain  not  only  acquiesces 
in  the  request  of  our  State  Department 
that  obnoxious  orders  be  withdrawn,  but 
generously  complies  with  the  overtures  of 
June  20th  and  forbids  British  merchantmen 
to  use  our  flag  under  any  circumstances — 
what  then?     Is  there  any  reason  why  the 


64      Neutral  Rights  and  Duties 

Mary  Jane  or  any  other  craft  belonging  to 
his  Britannic  Majesty's  marine  should  not, 
within  twenty-four  hours  after  Admiralty 
instructions  of  the  sort  referred  to  are  issued, 
fly  the  American  flag  when  in  a  position  of 
deadly  peril?  Except  for  the  near  presence  of 
an  enemy  submarine,  she  is  alone  on  the  sea. 
Neither  a  British  nor  American  man-of-war 
is  near  enough  to  be  cognizant  of  what  is 
happening.  If  she  escapes  who  shall  say  that 
the  United  States  which  gravely  disapproves 
of  the  practice  has  failed  in  its  duty  to 
Germany  or  that  Great  Britain  has  offended 
the  neutrality  of  the  United  States?  Yet  this 
is  a  fair  instance  of  what  happens  when  the 
American  flag  is  hoisted  by  a  belligerent 
merchantman.  It  is  unfortunate  and  much  to 
be  deprecated,  but  if  the  Mary  Jane's  govern- 
ment is  not  officially  responsible,  and  if  a 
United  States  war  vessel  is  not  at  hand  to 
take  due  action,  it  is  difficult  to  understand 
how  anything  can  come  from  the  naive 
insistence  of  the  public  that  the  United 
States  prevent  the  use  of  its  flag. 


Use  of  Neutral  Flags  65 

The  case  in  point  selected  for  illustrative 
purposes  only  is  that  of  a  British  ship. 
Exactly  the  same  circumstance  would  arise 
if  a  German  or  Austrian  acted  in  similar 
disregard  of  government  orders.  It  is  doubt- 
ful if  a  neutral  has  any  other  recourse  when 
its  rights  are  thus  infringed  than  that  which 
may  be  exacted  by  one  of  its  own  national 
vessels  at  the  time.  As  for  the  enemy,  why 
is  it  not  sufficiently  safeguarded  by  its 
belligerent  rights  of  search  and  the  machinery 
of  the  prize  courts? 


CHAPTER    IX 

TOUCHING  NEUTRAL  ATTITUDE  TOWARD 
CERTAIN  BELLIGERENT  INNOVATIONS 

\  I O  feature  of  the  war  which  has  enveloped 
■*•  ^  the  Eastern  Hemisphere  in  such  an 
extraordinary  fashion  is  so  fraught  with 
interest  to  the  international  lawyer  as  that 
which  has  to  do  with  blockade,  and  incident- 
ally with  contraband.  Much  has  been  done 
in  both  fields  that  is  plainly  illegitimate  and 
barbarous.  Of  such  episodes  little  can  be 
said  except  in  severe  condemnation.  No 
color  of  right  is  behind  them,  and  none  but 
the  disingenuous  or  prejudiced  will  excuse 
them.  Meantime  it  is  to  be  regretted  that 
the  critically  disposed  have  not  always  been 
just  in  their  animadversions.  As  has  been 
emphatically  suggested  in  these  pages,  new 
conditions    not    infrequently    so    alter    the 

66 


Belligerent  Innovations         67 

status  as  to  force  a  change  of  rules.  If  this 
were  not  done,  the  latter,  instead  of  being 
useful  and  adapted  to  ameliorate  a  trying 
situation,  would  become  not  only  difficult, 
but  dangerous. 

That  the  neutral  should  be  keenly  alive 
both  to  the  breach  of  law  and  to  attempted 
changes  in  practice  is  apparent  to  a  superficial 
observer.  Its  immediate  interests  and  its 
future  policies  are  so  frequently  concerned 
that  any  other  attitude  would  be  censurable. 
At  the  same  time  the  function  of  its  govern- 
ment is  quite  opposite  to  that  of  a  belligerent 
state.  The  latter,  because  of  immediate 
needs  which  are  vital,  poses  as  a  reformer,  or, 
better,  innovator.  For  the  moment  it  is 
inclined  to  forget  all  else,  even  its  duties  to 
humanity,  and  concentrate  upon  the  burning 
issue  which  has  caused  it  to  grapple  with  its 
adversary.  In  so  doing  it  impatiently  dis- 
cards whatever  threatens  its  integrity,  and 
takes  advantage  of  every  means  that  con- 
tributes to  its  end  (only  restricting  itself,  if  it 
appreciates  the  danger  to  itself  of  a  relapse 


68      Neutral  Rights  and  Duties 

into  barbarism,  to  such  novelties  as  are 
defensible). 

To  the  neutral,  on  the  other  hand,  the 
outlook  is  quite  different.  Affected  by  the 
war  both  in  the  matter  of  trade  and  in  such 
friendly  intercourse  with  sister  states  as  is 
mutually  beneficial,  it  is  far  from  being  privy 
to  the  issue;  resembling  the  huckster  who 
fears  that  his  apple  cart  will  be  overturned 
during  a  street  brawl  which  has  come  about 
without  his  connivance,  and  is  apprehensive 
and  alarmed. 

As  a  consequence,  the  neutral  is  solicitous 
that  the  conventional  law,  with  which  both 
it  and  the  belligerents  are  acquainted,  and 
which  has  the  sanction  of  an  earlier  genera- 
tion, shall  remain  intact.  This  will  give  it  a 
standard  of  action.  It  can  imagine  no  other 
way  of  ordering  its  affairs  and  views  a 
departure  from  the  tried  way  with  perplex- 
ity. To  it  via  trita  is  indeed  via  tuta,  and 
any  other  course  means  a  thousand  embar- 
rassments. 

With  its  interests  thus  widely  divergent 


Belligerent  Innovations         69 

from  those  of  the  belligerent,  the  neutral  is 
bound  to  remember  two  things : 

1 .  That  while  its  protecting  arm  must  be 
outstretched  to  safeguard  all  that  is  good  in 
existing  positive  law; 

2.  It  must  acquire  the  habit  of  putting 
itself  in  the  place  of  the  nation  at  war,  and 
seek  to  understand  the  difficulties  it  is  trying 
to  overcome — its  motives — and  the  argu- 
ments by  which  it  has  convinced  itself  of  the 
propriety  of  its  action.  A  private  counselor 
at  law  is  bound  in  justice  to  his  client  to  make 
careful  study  of  the  opponent's  case.  No  less 
diligence  should  be  expected  from  a  state 
department  which,  in  attempting  to  look 
after  neutral  rights,  joins  issue  with  the 
ministry  of  a  belligerent. 

In  attempting  to  protect  any  invasion  of 
existing  positive  law  which  has  to  do  with 
blockade  and  contraband,  the  task  of  the 
neutral  as  in  other  questions  affecting  in- 
ternational relations,  is  clearly  defined,  if 
difficult.  There  are  the  decisions  of  national 
courts  adjudicating  matters  of  international 


70      Neutral  Rights  and  Duties 

import — treaties,  conventions,  reports  from 
the  prize  courts,  and  other  sources  from 
which  to  draw. 

The  endeavor  to  estimate  the  validity  of 
novel  belligerent  intentions  or  practice  will 
be  found  more  perplexing.  If  they  bear  some 
approximation  to  natural  law,  as  understood 
and  already  defined  by  philosophers  and 
thinkers,  there  will  be  less  trouble  than 
otherwise.  If  they  are  founded  on  theories 
that  have  thus  far  proved  too  evasive  or 
destructive  to  receive  human  recognition, 
they  can  only  safely  be  rejected.  In  either 
case  fair-minded  neutrals  will  often  be  placed 
in  a  quandary.  At  such  times  and  in  cases 
where  positive  law  has  Jailed  to  become  coherent, 
or  is  altogether  silent,  the  neutral  may  well  set 
up  standards  which  meet  the  test  of  an  un- 
prejudiced mind  and  apply  them  to  the  par- 
ticular cases  which  come  to  its  attention,  not 
necessarily  for  the  purpose  of  reaching  a  final 
conclusion,  but  in  an  endeavor  to  clear  the  air. 
That  there  can  be  no  impropriety  in  a 
neutral's    so    doing,    especially    when    dis- 


Belligerent  Innovations         71 

cussing  contraband  and  blockade,  is  suggested 
by  the  action  of  a  most  eminent  international 
lawyer,  who  assigns  his  treatment  of  this 
subject  to  that  section  of  his  authoritative 
book  which  treats  upon  the  law  of  neutrality 
— "on  account  of  the  practical  importance 
of  blockade  for  the  interests  of  neutrals," 

Such  a  standard  has  already  been  suggested 
in  these  pages.  It  is  that  of  justifiable 
Dominion  or  Sovereignty.  Does  the  belliger- 
ent base  its  departure  from  accepted  ways 
upon  a  defensible  extension  of  that  supreme 
authority  which  all  states  accorded  each 
other  within  their  own  bounds  in  the  days 
when  the  law  of  nations  had  its  beginnings? 
Squaring  with  "the  reason  of  the  thing,"  the 
query  is  particularly  adapted  to  the  discussion 
of  belligerent  interference  with  neutral  well- 
being  through  shutting  off  trade  with  a  given 
coast  or  the  seizure  of  supplies  destined  to 
enemy  use. 

While  lexicographers  define  Dominion  in 
different  ways,  the  leading  definitions  make 
the  word  indicate — 


72     Neutral  Rights  and  Duties 

"  Sovereign  lordship  or  supreme  authority" ; 

"The  power  of  governing  or  controlling"; 

"The  right  of  uncontrolled  possession"; 

And,  in  law,  "An  act  tantamount  to  an 
exercise  of  ownership. " 

Dominion  sometimes  exists  by  virtue  of 
Right  alone.  Generally,  however,  it  is  ex- 
ercised by  Might.  If  this  Might  is  without 
Right,  and  is  consistent  and  constant,  it  must 
be  conceived  of  as  holding  its  dominant 
position  by  force.  If,  however.  Might  is 
coupled  with  Right,  it  presents  an  infinitely 
better  ground  for  recognition,  even  if  selfish 
interests  block  immediate  indorsement.  It 
is  this  sort  of  justifiable  or  vindicable  Domin- 
ion which  a  neutral  Power  may  well  have  in 
mind  when  drawing  conclusions  as  to  the 
decrees  and  performances  of  a  belligerent. 

Let  us  suppose  that  the  belligerent  under 
remonstrance  has  broken  the  positive  law  of 
nations;  claims  that  the  latter  is  obsolete; 
or  alleges  that  it  is  above  the  law.  What  is 
the  neutral  to  do?  Its  protests  are  without 
weight    as   far   as   any    juridical    system   is 


Belligerent  Innovations         73 

concerned.  It  is  equally  useless  to  appeal  to 
the  law  of  nature,  to  ethics  or  economics. 
If  the  belligerent  makes  humanity  synony- 
mous with  natural  law,  it  will  claim  that  its 
aggressive  acts  are  humane,  because  they 
conserve  the  interests  of  its  people.  If,  on 
the  contrary,  it  recognizes  Might  as  one  and 
the  same  with  law,  it  will  continue  to  work 
out  its  own  ends,  just  as  long  as  it  is  per- 
mitted so  to  do.  In  neither  case,  therefore, 
does  the  neutral  get  a  hearing. 

Thus  thwarted,  is  there  any  better  course 
for  the  neutral  to  follow  than  to  apply  the 
gauge  it  has  selected  and  consider  the  "reason 
of  the  thing"  in  somewhat  the  following 
manner : 

The  offending  belligerent  claims  Dominion, 
rightfully  or  wrongfully,  in  some  specific 
matter  pertaining  to  blockade  or  contra- 
band.   Two  questions  are  presented: 

I.  Is  the  belligerent  correct  in  its  con- 
clusions? Does  it  control  (have  dominion 
over)  the  mouth  of  a  given  harbor,  a  given 
coast,  a  given  zone,  a  given  area  of  sea  in 


74      Neutral  Rights  and  Duties 

which  its  war-ships  happen  to  be  operating 
in  a  manner  that  is  without  precedent?  If  it 
does  not,  it  is  acting  without  any  authority, 
unless  in  certain  contraband  cases  it  may  be 
that  authority  which  comes  from  the  law  of 
nations  which  it  refuses  to  obey. 

2.  If  the  belligerent  does  control  or  domi- 
nate the  aforesaid  section,  does  it  do  so  by 
right  or  by  sufficient  color  of  right  to  enable 
it  to  defend  its  course  on  the  ground  of  fair 
conquest  or  such  occupation  as  is  sometimes 
permitted  by  all  nations  in  areas  dominated 
by  no  one  of  them?  If  so,  it  deserves  con- 
sideration. If  it  does  not,  it  is  without 
standing  in  court,  and  need  only  be  consulted 
by  the  neutral  as  far  as  the  latter's  conven- 
ience permits.  No  matter  how  formal  the 
pronunciamentoes  of  the  belligerent,  or 
vicious  its  engines  of  war,  it  is  in  no  position 
to  object  to  an  aggressive  neutral  policy, 
and  as  long  as  human  reason  plays  a  potent 
part  in  human  affairs  will  incur  the  present 
condemnation  of  mankind  and  occupy  an 
unenviable  place  in  world  history. 


CHAPTER   X 

A    FURTHER    WORD    AS    TO    JUSTIFIABLE 
DOMINION 

A  S  suggested  in  the  last  chapter  the  neutral 
"^  may  well  rest  back  upon  rational  stand- 
ards in  times  when  positive  law  is  in  abeyance 
and  natural  law  so  diversely  interpreted  as 
to  fail  to  be  of  use.  In  so  doing  it  is  like  an 
unshackled  person.  On  the  one  hand  those 
bonds  of  positive  international  law  which  do 
not  accord  with  reason  and  which  were 
imposed  upon  it  during  the  dark  period  of 
belligerent  dictation  are  cast  off.  On  the 
other — it  is  free  as  a  sovereign  state  to  follow 
the  dictates  of  conscience  as  indorsed  and 
supplemented  by  its  best  reasoning  faculties. 
Such  part  of  the  positive  law  of  nations  as  is 
based  upon  the  eternal  principles  of  natural 

law  remains  to  it,  whether  recognized  or  not. 
75 


76     Neutral  Rights  and  Duties 

Meantime  it  is  in  a  position  with  other  neu- 
trals to  insist  upon  its  cardinal  rights. 

The  results  ought  to  be  fortunate  in  the 
extreme.  Many  have  fallen  into  the  habit 
(and  among  them  learned  professors)  of 
saying  that  international  law  has  been 
shattered  by  the  existing  turmoil,  and  in  a 
sense  they  are  correct,  but  if  as  a  result  a 
revised  law  of  nations  which  more  nearly 
accords  with  divine  justice  is  to  take  the  place 
of  an  arbitrary  code  drafted  by  war  barons, 
the  world  will  have  cause  to  rejoice.  It  is 
only  in  this  way  that  it  can  bring  about  con- 
ditions resembling  those  desired  by  the 
pacificist. 

These  preliminary  observations  have  been 
made  in  the  hope  that  such  as  are  relevant 
may  help  in  the  examination  of  problems  that 
are  exceedingly  difficult  to  solve.  Hereto- 
fore we  have  had  mostly  to  do  with  the  open 
sea,  on  which  the  lawmakers  have  said  all 
nations,  except  for  the  adoption  of  trammeling 
custom,  are  on  a  par.  Now  we  are  approach- 
ing the  sphere  of  normal  belligerent  activities 


Justifiable  Dominion  77 

and  are  to  consider  the  right  of  a  fighting 
nation  to  guard  its  own  coast  and  possessions 
and  to  capture  or  control  those  of  the  enemy. 
In  this  field  which  embraces  the  doctrine  of 
blockade,  and  what  may  be  claimed  to  be  a 
corollary  of  that  doctrine,  contraband  of  war, 
the  belligerent  looms  large,  and  the  neutral 
becomes  a  less  compelling  figure.  A  man 
may  take  himself  very  seriously  when  requir- 
ing his  contentious  neighbors  to  keep  off  his 
domain  and  to  avoid  blocking  the  avenues 
thereto.  It  is  quite  another  matter  for  him 
to  play  the  autocrat  in  an  adjoining  and 
quarrelsome  bailiwick.  Why?  Presumably 
because  in  the  one  he  possesses  the  attributes 
of  lordship,  which  he  lacks  in  the  other.  This 
lordship,  whether  it  arise  through  possession 
which  has  been  acquiesced  in  or  by  record 
title,  is  generally  accepted  among  men, 
whether  by  intuition  or  an  exercise  of  pure 
reason,  as  sufficient  to  justify  a  citizen's  atti- 
tude in  one  case  and  to  impugn  it  in  the  other. 
Is  there  any  reason  why  there  should  be 
other  standards  for  nations?     It  is  on  the 


78      Neutral  Rights  and  Duties 

presumption  that  there  is  not  that  the  sug- 
gestion has  already  been  made  that  a  neutral 
which  is  impressed  by  the  apparent  exercise 
of  efficient  dominion  by  a  belligerent,  should 
heed  such  of  the  latter's  warnings  not  to 
approach  certain  coasts  or  perform  certain 
acts  as  are,  to  its  mind,  based  upon  rightful 
authority.  In  deciding  upon  the  lawfulness 
of  these  commands  the  neutral  will  not  be 
troubled  when  it  comes  to  the  consideration 
of  belligerent  acts  of  dominion  within  the 
latter's  land  boundaries;  in  such  conquered 
territory  as  is  securely  held  and  administered 
by  its  armed  forces;  or  on  the  ocean-going 
ships  which  rightfully  fly  its  flag. 

Thus  far,  as  has  been  shown  in  discussing 
the  rights  of  neutrals  on  the  high  seas,  bel- 
ligerent supremacy  is  conceded.  Difficulties 
will  arise,  however,  when  the  great  water- 
ways of  the  world  are  in  question.  The  test 
is  the  same,  but  there  has  been  such  looseness 
in  its  exercise  and  such  irrational  adherence 
to  a  practice  which  no  longer  satisfies  the 
principle  that  introduced  it,  that  the  air  is 


Justifiable  Dominion  79 

entirely  befogged.  A  fog  is  frequently  dis- 
pelled by  a  fresh  westerly  wind.  What 
appears  to  be  murky  and  unsatisfactory  in 
the  matter  of  controlled  waters  ought  equally 
to  disappear  by  a  new  application  of  the 
principle  of  absolute  and  justifiable  dominion 
on  the  sea,  which  was  bound  in  swaddling 
clothes  in  the  days  when  muzzle-loading 
cannon  defended  harbor  forts  and  wooden 
ships-of-war  enforced  respect  for  the  state 
they  represented. 

With  an  absolute  revolution  in  the  matter 
of  ships  and  guns  the  time  has  certainly  come 
to  dispense  with  the  aforesaid  swaddling 
clothes  even  if  it  takes  a  surgical  operation, 
or  else  seek  out  a  new  principle.  The  mo- 
ment is  fortunate  because  the  necessity  of 
belligerents  has  led  them  to  so  neglect  rules 
uniformly  acknowledged  by  civilized  states 
as  to  partly  enfranchise  neutrals.  These 
latter  are  as  a  consequence  freer  to  adapt 
their  own  policies  so  that  the  latter  will 
square  with  any  defensible  regulations  that 
war  powers  may  enact. 


8o     Neutral  Riehts  and  Duties 


t5' 


In  doing  this,  with  full  conviction  that 
justifiable  dominion  is  the  only  ground  upon 
which  any  nation  may  arrogate  to  itself  the 
sovereignty  of  waters  about  its  own  or  enemy 
coasts,  we  may  perhaps  expect  that  one 
broad,  if  arbitrary,  exception  will  be  made 
to  any  nation's  claim — that  is,  the  right  of 
unimpeded  passage  by  neutrals  in  their  inter- 
course with  each  other  through  any  such 
broad  spaces  of  sea  as  are  the  avenues  of  world 
trade,  and  may  be  fairly  viewed  as  part  of  the 
great  sheet  of  water  which  encircles  the  globe, 
even  though  such  spaces  are  subject  to  con- 
trol. When  this  is  allowed  why  should  not 
the  neutral,  not  as  a  neutral  but  as  a  sover- 
eign state,  affirm  one  of  two  things:  (i) 
That  inasmuch  as  it  is  in  a  position  with  its 
ships  and  fortresses  to  absolutely  command 
much  larger  spaces  of  water  about  its  coast- 
line than  was  practicable  a  generation  ago, 
it  proposes  so  to  do;  (2)  that  it  is  prepared 
in  an  international  convention  to  waive  such 
rights  as  unquestionably  belong  to  it  and 
accept  an  arbitrary  sphere  of  control  which 


Justifiable  Dominion  8i 

shall  also  define  and  limit  the  sovereignty 
of  all  states. 

If  it  chooses  the  former  course,  it  is  bound 
to  accord  to  others  what  it  claims  for  itself, 
and  will  at  once  find  its  relations  to  belliger- 
ents, both  in  the  matter  of  blockade  and 
authoritative  zone,  so  modified  and  changed 
as  to  bear  no  resemblance  to  what  they  were 
under  the  positive  law  of  nations  as  under- 
stood by  the  members  of  the  Hague  Confer- 
ences. If  it  chooses  the  latter,  pending  such 
time  as  will  again  bring  the  nations  in  con- 
vention, it  will  either  have  to  champion  and 
perhaps  fight  for  part  of  a  code  that  Powers 
in  the  stress  of  events  claim  to  be  outworn 
and  ineffective,  or  submit  to  various  and 
trying  interim  experiences. 

Are  there  fallacies  in  these  suggestions? 
It  would  not  be  surprising  if  there  were. 
When  one  endeavors  to  think  constructively, 
elements  which  should  have  attention  fre- 
quently escape  notice.  Meanwhile  let  us 
hope  that  a  frank  discussion  of  the  limitations 
of   state   sovereignty   may   prove   at   least 


82      Neutral  Rights  and  Duties 

helpful  to  a  better  understanding  of  questions 
appertaining  to  blockade  and  later  to  con- 
traband. 

Whatever  the  shortcomings  of  the  present 
argument,  it  may  be  confidently  affirmed  that, 
except  on  the  ground  of  common  consent, 
present-day  belligerents  cannot  long  be  held 
down  to  an  observance  of  the  rules  of  block- 
ade as  defined  and  practiced  since  the 
American  Civil  War,  nor  neutrals  be  required 
to  submit  to  certain  features  in  the  existing 
law  of  contraband. 


CHAPTER  XI 


BLOCKADE 


pHILLIMORE  states — volume  iii.,  page 
*  473 — that  "Among  the  rights  of  bel- 
ligerents there  is  none  more  clear  and  incon- 
trovertible, or  more  just  and  necessary  in 
the  application,  than  the  one  which  gives 
rise  to  the  right  of  blockade." 

While  that  eminent  lawyer  in  arriving  at 
this  conclusion  unquestionably  places  great 
weight  upon  precedents  and  the  opinions 
of  courts  and  commentators,  quoting  Grotius, 
Bynkershoeck,  and  Vattel  at  length,  and  di- 
rectly stating  that  there  is  no  subject  of 
maritime  or  international  law  upon  which 
jurists  of  all  nations  are  so  unanimous  and 
precise  in  their  opinions  as  upon  the  right 
and  law  of  blockade,  he  yet  does  not  hesitate 
to  affirm — volume  iii.,  page  474 — "that  a  dec- 
83 


84      Neutral  Rights  and  Duties 

laration  of  blockade  is  a  high  act  of  sovereign 
power." 

There  is  no  doubt  that  a  neutral,  whether 
or  not  it  choose  to  consider  itself  as  released 
from  all  obligations  to  observe  the  positive 
law  of  nations  because  of  the  derelictions 
of  others,  should  regard  all  declarations  of 
blockade  as  such,  viz.,  high  acts  of  sovereign 
power.  It  will  then,  if  the  acts  are  warrant- 
able (within  the  rightful  province  of  the 
belligerent),  give  them  the  same  considera- 
tion that  it  accords,  as  a  matter  of  course, 
to  all  the  legitimate  performances  of  a  sover- 
eign state.  Thus  concluding  and  thus  acting 
by  the  exercise  of  reasoning  faculties,  and 
without  necessary  reference  to  precedent,  it 
recognizes  the  fact — 

1.  That  when  other  states  are  unable  to 
peaceably  settle  difficulties  arising  between 
themselves  they  will  go  to  war. 

2.  That  as  a  consequence  of  war  each  of 
the  belligerents  will  endeavor  to  impose  its 
sovereignty  upon  such  possessions  of  the 
other  as  it  may  control. 


Blockade  85 

3.  That  when  such  enemy  sovereignty  is 
extended  over  conquered  enemy  territory  or 
over  the  waters  which  wash  enemy  coast  line 
or  flood  enemy  harbors,  it  is  a  valid  exercise 
of  dominion  to  which  the  neutral  as  a  neutral 
must  show  the  same  consideration  as  it 
requires  for  itself  in  the  field  of  its  own  sover- 
eignty. 

This  discussion  regarding  the  righteous- 
ness or  rightfulness  of  blockade,  and  the 
controlling  characteristic  which  makes  it 
authoritative  to  neutrals,  whether  they  are 
released  from  precedent  or  not,  naturally 
follows  certain  propositions  already  advanced 
for  the  use  of  a  neutral  Power  whose  rights 
under  the  law  of  nations  have  been  ignored. 
At  the  same  time  it  properly  antecedes  a 
more  formal  consideration  of  a  subject  which 
never  was  of  greater  importance  than  at 
present. 

Referring  now  to  the  text  writers,  we  find 
that  blockade,  which  as  a  belligerent  right 
is  hardly  second  to  belligerency  itself,  is 
defined  by  Oppenheim  (the  latest  authority), 


86     Neutral  Rights  and  Duties 

in  the  second  edition  of  his  valuable  treatise, 
as  "the  blocking  by  men-of-war  oj  the  ap- 
proach to  the  enemy  coast  or  a  part  of  it  for  the 
purpose  of  preventing  ingress  or  egress  of 
vessels  of  all  nations.  "  It  will  be  noted  that 
Oppenheim's  book  was  published  by  Long- 
mans, Green  and  Company  in  London  in  19 12, 
three  years  prior  to  the  British  Orders  in 
Council  which  have  caused  some  Englishmen 
as  well  as  many  neutrals  much  apprehension, 
and  that  it  fairly  sets  out  the  consensus  of 
authority  up  to  the  date  of  its  appearance. 
In  so  doing  it  specifically  and  necessarily 
limits  blockade  to  the  investment  of  "enemy 
coast  or  a  part  of  it,"  and  is  in  line  with 
Article  I.  of  the  Declaration  of  London, 
"Le  blocus  doit  ^tre  limite  aux  ports  et  aux 
c6tes  de  I'ennemi  ou  occupes  par  lui, "  which, 
ratified  or  unratified,  has  the  standing  which 
James  Brown  Scott  gives  to  those  clauses 
of  the  Hague  Conference  to  which  nations 
attached  reservations.  Dr.  Scott  says — see 
Introduction  to  The  Hague  Conventions  and 
Declarations,    published    by     the    Carnegie 


Blockade  87 

Endowment — "Failure  to  ratify  is  merely  to 
be  regarded  as  the  rejection  of  a  codified  text, 
not  as  the  rejection  of  principles  of  interna- 
tional law,  which  no  Power  can  reject  without 
excluding  itself  from  the  society  of  nations.  " 

If  the  definition  is  a  correct  one  the  rul- 
ings of  the  Conference  are  authoritative, 
and  we  are  right  in  our  claims  set  out  in  the 
last  paper,  that  any  act  of  dominion  by  a 
belligerent  on  the  high  seas  nearly  adjacent 
to  its  coast  must  by  the  reason  of  the  thing 
yield  to  the  prior  and  controlling  right  which 
lies  in  the  body  of  neutral  states  it  excludes, 
to  traffic  with  each  other;  and  the  act  of  the 
British  Government,  as  far  as  it  is  interpreted 
as  authorizing  the  blockade  of  neutral  ports, 
(however  amicable  its  intention,)  must  have 
been  taken  without  serious  expectation  that 
it  could  be  defended  if  challenged,  and  can- 
not be  cited  as  a  valid  extension  of  any 
existing  principle. 

This  reference  is  made  to  a  special  act  of 
Great  Britain,  which  is  claimed  to  be  nothing 
more  than  an  adaptation  of  an  existing  and 


88     Neutral  Rights  and  Duties 

reasonable  rule  to  present  conditions,  in  order 
to  emphasize  the  necessity  of  a  neutral's 
discouraging  all  such  innovations  if  it  wishes 
to  avoid  pitfalls  that  may  be  its  undoing. 

Bearing  in  mind,  then,  the  necessity  of 
excluding  any  unnatural  interpretations  of 
the  given  definition  of  blockade,  and  espe- 
cially such  as  directly  contradict  its  obvious 
meaning,  the  student  can  advantageously 
review  certain  aspects  of  the  doctrine. 

The  Declaration  of  London  of  1909  sum- 
marized conclusions  generally  admitted  at 
the  time  of  that  conference  in  twenty-one 
articles.  These  include  the  definition  already 
given  and  statements  which  are  suggested 
by  the  following  recapitulation: 

Art.  2 — Blockade  must  be  effective. 

Art.  3 — It  is  a  question  of  fact  whether  or 
not  blockade  is  effective. 

Art.  4 — Blockade  is  not  raised  by  the 
temporary  dispersion  of  a  fleet  owing  to 
stress  of  weather. 

Art.  5 — Blockade  must  be  impartially 
exercised. 


Blockade  89 

Arts.  6,  7 — Exception  ought  to  be  and  is 
made  in  the  case  of  neutral  ships-of-war  and 
vessels  in  distress. 

Arts.  8,  9,  10,  II,  12,  13,  16 — To  be  obhga- 
tory  a  blockade  should  be  declared  and  noti- 
fied by  a  competent  authority,  fixing  the 
date  of  commencement  and  indicating  the 
geographical  limits.  If  the  required  for- 
malities are  not  observed  in  the  original 
declaration  a  new  announcement  must  follow, 
and  in  any  case  neutral  ships  in  port  at 
the  time  of  notification  are  to  have  special 
consideration. 

All  neutral  Powers,  as  well  as  the  local 
authorities,  must  be  notified  by  the  blockad- 
ing Power  or  the  commander  of  its  squadron. 

There  must  be  distinct  announcement  in 
case  blockade  is  extended  or  renewed  after 
suspension. 

Special  treatment  is  to  be  accorded  ships 
not  informed  of  the  existing  blockade,  and 
neutrals  must  be  notified  that  a  blockade  is 
discontinued  in  case  it  is  voluntarily  relin- 
quished. 


90      Neutral  Rights  and  Duties 

Arts.  14,  15,  17,  19,  20,  21 — A  neutral  ship 
with  actual  or  presumed  notice  of  blockade 
may  be  seized  and  confiscated. 

Right  of  seizure  should  be  limited  to  the 
field  occupied  by  the  blockading  squadron. 
Exceptions  to  the  right  of  seizure  favor  the 
neutral  vessel  in  case  the  latter  passes  through 
a  blockading  squadron  on  its  way  to  an  un- 
blockaded  port,  and  favor  the  blockading  ship 
in  cases  where  the  chase  of  an  outward  bound 
neutral  ship  is  continuous. 

Art.  18 — ^A  blockading  force  must  not  bar 
access  to  a  neutral  port. 

It  will  be  noticed  that  these  articles,  pre- 
pared after  exhaustive  study,  naturally  divide 
themselves  under  comparatively  few  headings, 
which  call  attention  to  the  requirements  of 
blockade,  such  as  effectiveness,  limit  in  time 
and  space,  notice  and  declaration,  the  penalty 
of  breaking  blockade,  and  belligerent  rights 
and  duties  prior  to  and  in  connection  with  the 
imposition  of  the  same;  the  attitude  of  a 
blockading  squadron  toward  neutral  coun- 
tries and  vessels  not  directly  chargeable  with 


Blockade  91 

breaking  into  an  enemy  port  through  the 
cordon  it  has  established. 

These  probably  comprehend  all  ordinary 
phases  of  the  subject,  and  if  given  separate 
and  sufficient  attention  should  advise  a  neu- 
tral of  its  rights  and  duties  in  the  premises. 


( 


CHAPTER  XII 

EFFECTIVENESS  AS  A  REQUISITE  OF  BLOCKADE 

DLOCKADE  in  order  to  hold  neutrals 
"^  must  be  effective.  That  is  what  the 
savants  have  agreed  since  the  Paris  Con- 
vention in  1856.  That  is  what  the  Decla- 
ration of  London  affirmed  in  1909. 

Prior  to  the  former  date  the  great  nations, 
in  spite  of  the  statements  of  the  Armed 
Neutralities,  seemed  obsessed  with  the  idea 
that  belligerency  was  the  normal  condition  of 
states  and  that  international  law  reflected 
the  wishes  of  belligerents.  For  this  reason 
the  so-called  "paper  blockade,"  which  inter- 
fered with  neutral  trade,  by  proclamation 
received  consideration  until  the  nineteenth 
century.  It  was  doubtless  in  the  discussions 
which  followed  neutral  endeavor  to  articulate 

the  conviction  that  a  belligerent  must  justify 
92 


Effective  Blockade  93 

its  aggressive  action  in  interfering  with  the 
former's  commerce  that  the  word  effective 
was  chosen  to  characterize  the  sort  of  block- 
ade that  might  properly  receive  neutral 
recognition. 

To  the  impartial  mind  the  selection  reflects 
timidity.  At  all  events  it  was  a  blunder. 
Effectiveness  ought  certainly  to  be  required 
of  any  blockade  that  can  be  defended,  but 
effectiveness  does  not  of  itself  vindicate  the 
blockade. 

A  robber  state  may  seize  and  effectively 
hold  the  property  of  an  abutting  nation  just 
as  a  bandit  chief  may  effectively  hold  the 
personal  property  he  has  wrenched  from  the 
defenseless,  or  bar  the  use  of  a  highway  to  an 
intimidated  neighbor.  In  neither  case  does 
the  effectiveness  of  the  act  excuse  or  explain 
it. 

Since  the  word  effective,  coined  long  since, 
is  clearly  insufficient  and  loses  its  usefulness 
at  a  time  when  belligerents  are  making  their 
own  rules,  it  is  proper  for  the  neutral,  which 
believes  that  blockade  like  other  belligerent 


94     Neutral  Rights  and  Duties 

acts  is  only  to  be  recognized  as  an  act  of 
justifiable  dominion,  to  substitute  the  latter 
phrase  for  the  word  effective  in  determining 
its  obligations  in  the  matter  of  a  belligerent 
effort  to  shut  off  its  trade  with  enemy  ports. 
In  doing  this  it  will  not  eliminate  the  idea  of 
effectiveness — this  is  included  in  the  larger 
designation  and  is  an  element  without  which 
any  endeavor  to  control  enemy  coasts  must 
prove  futile. 

"A  blockade  de  facto  should  be  effected  by 
stationing  a  number  of  ships  and  forming  as 
it  were  a  circumvallation  round  the  mouth  of 
the  prohibited  port,  where,  if  the  arch  fails  in 
any  one  part,  the  blockade  fails  altogether." 
(The  Arthur — i  Dodson,  p.  423.)  That  is 
the  way  a  much-quoted  authority  expressed 
the  general  idea  of  an  effective  blockade  in  the 
days  when  ships-of-war  were  but  feeble  instru- 
ments of  the  execution  of  a  nation's  will  when 
compared  with  the  units  which  compose  a 
modern  fleet.  Old-fashioned  as  the  rule  now 
appears  to  be  in  the  face  of  later  practice,  it 
is  yet  exceedingly  suggestive,  as  indicating 


Effective  Blockade  95 

the  closeness  of  the  watch  which  many  have 
declared  that  a  blockading  squadron  is 
expected  to  keep  over  the  coast  which  it 
patrols. 

That  there  is  another  and  more  liberal  point 
of  view  is  apparent  to  all  who  are  informed  of 
the  blockading  of  2500  miles  of  Confederate 
coast  during  the  American  Civil  War  by 
four  hundred  ships  of  all  sorts.  Impossible  as 
it  was  for  the  Union  navies  to  shut  out  all 
blockade  runners,  the  cordon  which  they 
maintained  was  sufficiently  masterful  to  make 
an  attempt  to  pass  through  exceedingly 
hazardous.  Neutral  states  therefore  recog- 
nized the  act  of  the  Federal  Government  as 
entitled  to  the  same  degree  of  consideration 
that  the  public  in  a  great  city  accords  the 
police  lines  that  are  thrown  about  a  given 
municipal  district  which  is  the  scene  of  a 
conflagration  or  tumult.  They  were  con- 
scious that  individual  ships  might  safely  slip 
through  the  line  of  patrolling  gunboats^ 
indeed  they  frequently  did  so — just  as  single 
citizens  pass  the  limits  from  which  they  are 


96     Neutral  Rights  and  Duties 

refused  admittance  without  having  their 
heads  broken  in  the  attempt,  but  the  risk 
was  sufficient  to  make  the  venture  imprudent, 
and  it  being  within  the  province  of  a  beUiger- 
ent  to  impose  such  restriction  as  had  been 
formally  proclaimed,  they  assented  to  the 
blockade  as  authoritative. 

Differing  as  these  two  theories  do  regarding 
what  is  required  to  make  a  blockade  effective, 
it  does  not  seem  as  if  there  were  any  sufficient 
antagonism  to  explain  such  a  conflict  among 
publicists,  as  is  apparent.  Underlying  each 
is  the  same  vital  principle  which,  crudely 
expressed  in  the  books,  makes  it  necessary 
that  a  belligerent  in  imposing  a  burden  upon 
the  commercial  world  shall  make  such  con- 
tinuous demonstration  of  its  power  to  enforce 
its  decrees  as  will  command  attention. 

This  is  happily  recognized  in  Article  3  of 
the  Declaration  of  London  by  the  positive 
affirmation — "La  question  de  savoir  si  le 
blocus  est  effectif  est  une  question  de  fait." 
Would  that  every  statement  of  an  interna- 
tional convention  were  as  clear  and  incisive, 


Effective  Blockade  97 

and  that  all  the  rules  which  have  been  enacted 
by  nations  in  conference  had  been  as  flexible 
and  adapted  to  all  periods!  If  it  is  to  stand 
hereafter  (and  it  must  if  reason  is  to  be  the 
arbiter),  it  will  be  found  equally  adaptable 
to  a  period  in  which  a  nation's  military  re- 
sources upon,  above,  and  below  the  surface 
of  the  sea  far  transcend  those  now  existent, 
as  it  is  to  present  problems.  Already  it  is 
serving  the  good  purpose,  quite  irrespective 
of  its  standing  as  part  of  an  unratified  de- 
claration, of  bringing  clearly  to  men's 
minds  the  fact  that  precedents  which  refer  to 
the  agencies  used  by  a  belligerent  to  enforce 
its  will  are  only  valuable  when  coupled  with 
a  clear  appreciation  of  the  limitations  of  the 
epoch  to  which  they  refer. 

Never  did  the  nations  stand  in  greater  need 
of  such  declaratory  and  cautioning  words  as 
those  drafted  by  their  emissaries  as  the  ex- 
pression of  world  opinion  just  prior  to  the 
greatest  of  wars.  To  states  in  arms  they 
carry  a  positive  message,  which  says  in 
effect:  "On    the    hypothesis    that    you    are 


98      Neutral  Rights  and  Duties 

within  your  belligerent  rights,  do  not  fail 
to  remember  that  although  your  ships  with 
auxiliary  agencies  can  command  much  wider 
areas  off  enemy  coasts  than  the  vessels  of 
former  years: 

"  I.  You  are  pitted  against  enemy  ma- 
chinery in  the  shape  of  fortress  guns,  mines, 
vessels,  and  all  manner  of  defensive  in- 
ventions. 

"2.  As  your  fleets  push  their  outer  lines 
into  ever  widening  zones  of  sea,  they  must 
expect  to  contest  with  the  elements  for  a 
certain  sovereignty  which  nature  has  not 
yet  conceded  to  man. 

"  3.  That  the  swift  vessels  of  commercial 
nations  not  involved  as  direct  partisans  in 
the  war  are  not  to  be  as  easily  policed  as  the 
sailing  craft  of  earlier  times. 

"4.  And  that  nothing  less  than  absolute 
ability  to  control  these  forces  as  a  matter  of 
fact  will  be  accepted  by  the  neutral  world  as 
an  effective  blockade." 

To  neutral  Powers  the  message  is  brief  but 
crammed  with  significance:  "If   a   belliger- 


Effective  Blockade  99 

ent  acting  within  its  rights  is,  as  a  matter  of 
fact,  dominating  waters  off  an  enemy  coast, 
your  shipping  must  avoid  such  seas,  otherwise 
it  will  be  confiscated." 


CHAPTER  XIII 

SOME      PRELIMINARY      REMARKS      REGARDING 
RECENT   INTERFERENCE   WITH    NEU- 
TRAL TRADE 

'T'HOSE  who  have  thought  of  the  science 
■'■  of  pubHc  international  law  as  something 
academic  and  impracticable  must  have  had  a 
sharp  awakening  in  the  last  twelve  months. 
To  their  mind  municipal  law  had  an  honor- 
able standing  because  its  rules  and  require- 
ments must  be  obeyed,  but  the  law  of  nations 
could  have  nothing  to  do — and  would  have 
nothing  to  do — with  their  personal  welfare. 

If  millions  of  such  have  not  been  disabused 
of  their  opinions  since  August,  19 14,  it  is 
because  they  are  without  an  appreciation  of 
the  great  events  which  are  affecting  all 
civilized   peoples.     For   crisis   has  followed 

crisis,  and  state  papers  affecting  races  have 
100 


Interference  with  Trade       loi 

been  interchanged  with  unparalleled  activity 
— each  several  issue  in  turn  being  shaped  in 
accordance  with  international  law  or  judged 
by  its  precepts.  Among  these  none  has  been 
weighted  with  more  significance  for  the 
population  of  great  states  than  those  which 
have  had  to  do  with  blockade  and  certain 
belligerent  rights  connected  therewith. 

The  average  citizen  has  long  understood 
that  he  frequently  suffers  and  is  imposed 
upon  because  of  a  failure  of  the  police  and  the 
courts  to  vindicate  his  rights. 

Now  if  we  are  to  believe  Imperial  Chan- 
cellors, every  individual  in  Germany,  Austria- 
Hungary,  and  Great  Britain  is  to  be  seriously 
affected  because  of  enemy  policies  which  are 
claimed  to  be  breaches  of  the  law  of  blockade, 
breaches  which  can  only  be  prevented  by 
force  of  arms  and  such  a  crystallization  of 
neutral  opinion  or  affirmative  action  as  will 
command  the  attention  of  the  aggressor. 

Thus  international  law  has  become  a 
matter  of  very  serious  import  to  men  and 
women  in  Europe.     That  it  is  already  such 


I02    Neutral  Rights  and  Duties 

to  the  citizen  of  the  United  States  is  apparent 
to  all  that  are  conversant  with  the  communi- 
cations which  have  passed  between  Washing- 
ton and  European  chancelleries,  and  who 
have  heeded  the  manner  in  which  prepared- 
ness for  action  is  being  discussed. 

It  is  this  fact,  viz.,  the  concern  of  the 
individual  in  the  underlying  principles  of 
law,  whether  codified  or  not,  as  it  affects  the 
nations,  that  makes  it  wise,  first  to  review 
existing  practice  and  discuss  broad  grounds 
of  action  when  practice  has  been  negatived 
or  is  lacking ;  then  to  acquaint  ourselves  with 
actual  problems  and  come  to  such  conclusions 
as  reason  shall  dictate.  Following  such  a 
course  in  reference  to  the  doctrine  of  block- 
ade, we  have  noted  the  fact  that  blockade 
is  an  act  of  dominion  over  coasts  and  in 
waters  where  a  belligerent  exercises  lordship 
as  by  conquest;  recapitulated  the  rules 
approved  by  the  Declaration  of  London; 
marked  the  bounds  by  which  belligerent 
activities  are  limited,  and  called  attention  to 
the    fact    that    new    conditions    may    vary 


Interference  with  Trade       103 

practice  without  changing  principles.  We 
are  therefore  prepared  to  take  up  and 
impartially  comment  upon  the  present  status 
in  the  North  Sea,  the  English  Channel,  and 
the  waters  surrounding  the  British  Isles  as 
it  affects  the  United  States  and  all  neutrals. 
That  it  is  extraordinary,  even  when  compared 
with  the  startling  war  measures  that  have 
not  infrequently  stirred  the  people  of  earlier 
generations,  will  not  be  gainsaid,  and  there 
is  great  occasion  for  contentment  because 
President  Wilson's  Government  has  handled 
itself  so  admirably,  stating  and  restating 
those  parts  of  the  law  of  nations  which  are 
applicable  thereto  with  accuracy,  and  refus- 
ing to  concede  the  propriety  or  lawfulness  of 
acts  based  upon  interested  interpretation  or 
so-called  extensions  of  familiar  principles  and 
necessity. 

To  understand  the  situation  and  get  all  the 
facts  in  mind  which  have  any  connection 
therewith  it  is  necessary  to  recall : 

I.  The  earlier  correspondence  of  the  war 
period  which  has  passed  between  belligerent 


I04    Neutral  Rights  and  Duties 

governments  and  the  State  Department  of 
the  United  States; 

2.  The  direct  proclamations  of  belligerent 
Powers  regarding  war  areas ;  and 

3.  Further  communications  which  have 
been  exchanged  in  an  endeavor  to  clarify  or 
justify  official  action  or  position. 

Of  intense  interest  were  the  notes  inter- 
changed in  regard  to  the  Declaration  of 
London  which  cover  the  dates  between 
August  6  and  October  24,  1914.  These 
included  the  inquiry  from  Washington  as  to 
whether  the  conclusions  of  the  Naval  Con- 
ference were  to  be  regarded  as  applicable  to 
the  opening  conflict  and  the  suggestion  that 
inter-agreement  might  prevent  grave  mis- 
understandings, the  replies  from  belligerent 
states,  and  the  final  withdrawal  by  the 
American  Government  of  its  overtures.  It 
will  be  remembered  that  the  Central  Powers 
indicated  willingness  to  conform  to  the 
Declaration  of  1909,  provided  the  enemy 
did  likewise,  and  the  responses  from  England 
and    France    were    acceptances    subject    to 


Interference  with  Trade       105 

certain  modifications  and  limitations;  also 
that  the  returns  were  such  as  not  only  made 
it  appear  unwise  to  the  United  States  to  go 
further  in  the  matter,  but  were  sufficiently 
defined  to  indicate  that  the  Allies — for 
Russia  followed  the  action  of  Great  Britain 
and  France — felt  that  the  ratification  of  the 
Declaration  would  be  an  embarrassment  to 
them.  Indeed,  in  the  memorandum  attached 
to  the  British  Government's  communica- 
tions to  the  American  Ambassador  in  London 
are  direct  intimations  that  Great  Britain 
believed  the  enemy  would  probably  receive 
vast  quantities  of  supplies  through  such 
neutral  ports  as  Rotterdam,  and  that  adher- 
ence to  the  defined  laws  of  the  Declaration 
regarding  blockade,  conditional  contraband, 
and  ultimate  destination  of  contraband  would 
work  disadvantageously  to  the  Allies;  a  fact 
that  appears  to  have  been  so  patent  to 
Germany  and  Austria-Hungary  as  to  have 
made  those  governments  careless  in  regard 
to  the  indorsement  of  the  rules  referred  to, 
provided  they  were  adopted  by  the  enemy. 


io6    Neutral  Rights  and  Duties 

But  little  time  interposed  between  the 
withdrawal  of  the  United  States  of  its 
suggestions  regarding  the  Declaration  of 
London  and  official  protest  by  this  govern- 
ment against  restraints  upon  its  commerce. 
The  final  letter  touching  the  Declaration  was 
dated  October  24,  19 14.  On  the  26th  of  the 
following  December  the  Department  of  State 
filed  a  formal  protest  against  British  treat- 
ment of  cargoes  bound  to  neutral  ports,  and 
received  a  polite  reply  which,  with  the 
supplementary  letter  that  followed,  reflected 
the  anxiety  with  which  the  Allies  viewed  the 
manner  in  which  supplies  (that  might  under 
ordinary  circumstances  have  been  legiti- 
mately cut  off  by  naval  Powers  of  such 
importance  as  Great  Britain  and  its  ally, 
France,  by  extending  the  list  of  contraband 
or  by  a  blockade  of  enemy  coast)  were 
reaching  the  enemy  through  the  ports  of 
countries  whose  trade  in  various  commodities 
had  increased  inordinately.  These  communi- 
cations, taken  in  connection  with  the  de- 
tention of  various  vessels  flying  the  United 


Interference  with  Trade       107 

States  flag,  were  sufEcient  to  indicate  that 
the  Allies  considered  themselves  justified  in 
so  construing  the  laws  affecting  "continuous 
voyage"  and  "search"  as  to  permit  them  to 
subject  neutrals  to  all  the  inconveniences  of 
a  blockade  more  far-reaching  and  injurious 
than  had  ever  been  attempted. 

They  were  followed  in  due  course  by  the 
German  proclamation  of  February  4,  191 5, 
declaring  the  waters  surrounding  Great 
Britain  and  Ireland,  including  the  whole 
English  Channel,  to  be  a  war  zone,  and  by  a 
memorial  of  the  Imperial  German  Govern- 
ment which  affirmed  that  just  as  England  had 
decreed  "the  whole  North  Sea  between 
Scotland  and  Norway  to  be  comprised  within 
the  seat  of  war,  "  so  Germany  by  its  proclama- 
tions declares  "that  it  will  prevent  by  all 
military  means  at  its  disposal  all  navigation 
by  the  enemy  in  those  waters,"  and  warns 
neutral  Powers  "to  recommend  to  their  own 
vessels  to  steer  clear  of  these  waters."  Here 
are  two  attempts  to  impose  a  virtual  block- 
ade, neither  of  which  has  any  standing  in 


io8    Neutral  Rights  and  Duties 

positive  international  law,  however  inter- 
preted, and  neither  of  which  at  all  appeals  to 
the  impartial  mind  as  having  any  resemblance 
to  the  controlling  principles  of  justice  and 
equity.  The  latter  can  be  abruptly  dismissed 
because  of  its  frank  lawlessness.  The  earlier, 
which  has  now  assumed  definite  form,  re- 
quires more  particular  attention. 


CHAPTER  XIV 

THE  ORDER  IN  COUNCIL  OF  MARCH,  I915 

TPHE  attention  of  the  reader  has  been 
-^  called  to  the  German  Declaration  of 
February  4,  191 5,  which  initiated  the  so- 
called  submarine  blockade,  and  to  certain 
British  correspondence  and  acts  anterior 
thereto.  Before  dismissing  the  action  of  the 
Kaiser's  Government,  which  the  latter  ap- 
pears to  have  based  upon  a  certain  necessity 
induced  by  the  activities  of  the  British  fleet, 
and  the  "toleration"  of  neutrals,  it  should 
be  said : 

1 .  That  no  dereliction  of  a  belligerent  or 
neutral  could  justify  the  extraordinary  fea- 
tures which  threatened  to  make  the  sub- 
marine, as  used,  a  frightful  and  irrational 
innovation  to  the  terrors  of  war. 

2.  That  aside  from  other  characteristics 

109 


no    Neutral  Rights  and  Duties 

required  to  make  blockade  legitimate,  the 
German  submarine  fleet,  far  from  effectively 
dominating  the  waters  in  which  the  Imperial 
Government  has  pushed  its  retaliating  and 
military  measures  against  England,  which 
would  have  been  requisite  to  secure  the 
attention  of  neutrals,  have  done  little  more 
than  maintain  a  precarious  footing. 

3.  That  neutrals  were  and  are  under  no 
obligation  to  pay  any  attention  to  the  Ger- 
man Admiralty's  proclamation  of  February 
4th,  because  no  principle  of  law  outside  that 
of  blockade  appears  to  exist  or  has  been 
advanced  in  modern  times  by  which  a 
belligerent  can  close  uncontrolled  sections 
of  the  high  seas  to  neutral  vessels  without 
raising  a  casus  belli. 

With  this  brief  discussion  of  the  extra- 
ordinary campaign  which  Germany  is  con- 
ducting in  seas  through  which  all  neutrals 
have  a  right  of  way,  we  turn  to  the  British 
Orders  in  Council,  transmitted  by  the 
American  Ambassador  March  15,  191 5,  after 
a  preliminary  notice  from  Sir  Cecil  Spring 


The  Order  in  Council         m 

Rice  dated  March  i  st.  It  will  be  remembered 
that  a  simultaneous  decree  was  issued  by 
the  French  Ministry.  Obviously  the  action 
taken  by  the  Allies  is  the  direct  result  of  the 
natural  endeavor  of  these  belligerents  to  meet 
a  situation  which  was  most  exasperating. 
With  the  opening  of  the  war  they  had  found 
Germany  to  be  reasonably  independent  of  the 
commerce  between  her  own  and  American 
ports.  Advantageously  located  for  war 
exigencies,  she  could  practically  lock  up  her 
own  harbors  and  receive  such  imports  as 
were  needed  through  adjacent  neutral  coun- 
tries. Such  action  negatived  much  of  the 
offensive  value  of  Great  Britain's  armored 
fleets,  and  could  not  be  permitted.  Plans 
were  therefore  devised  by  the  adaptation  of 
familiar  principles  to  shut  off  all  merchandise 
reaching  Germany  and  Austria-Hungary 
through  neutral  intermediaries.  These  com- 
prehended : 

I .  A  pushing  of  the  doctrine  of  contraband 
to  such  a  limit  as  would  make  it  possible  to 
detain  contraband  whether  bound  to  enemy 


112    Neutral  Rights  and  Duties 

ports  or  consigned  to  neutrals  who  might 
easily  transship  it. 

2.  The  seizure  of  neutral  ships  within 
given  waters  and  the  taking  of  such  craft  to 
suitable  allied  harbors  for  rigid  investigation, 
on  the  ground  that  they  might  have  con- 
traband concealed. 

It  is  not  surprising  that  such  measures 
shortly  after  they  were  adopted  did  much  to 
discourage  the  greater  part  of  the  trade  which 
Germany  had  built  up.  With  every  neutral 
vessel,  wherever  bound,  under  the  suspicion 
of  carrying  a  consignment  for  the  enemy,  and 
of  concealing  contraband  so  cleverly  as  to 
require  a  more  particular  search  than  can  be 
effected  outside  of  a  suitable  anchorage,  a 
belligerent  fleet  can  work  havoc  both  with 
the  enemy  and  neutrals. 

It  will  be  recalled  that  when  the  United 
States  took  exception  it  was  politely  pointed 
out  by  Great  Britain  that  precedents  of  the 
Supreme  Court  justified  the  continuous 
voyage  theory ;  and  that  ships  had  become  so 
large   that    (if,    for   instance,    they   carried 


The  Order  in  Council        113 

contraband  copper  concealed  in  cotton  bales) 
they  could  not  safely  be  examined  in  deep 
water — arguments  which  were  not  accepted 
as  convincing.  As  for  the  enemy,  which 
appeared  to  have  been  badly  crippled  by  the 
adoption  of  such  measures,  something  posi- 
tive seemed  necessary,  and  the  submarine 
terror  was  inaugurated,  only  to  bring  in  re- 
taliation the  definite  Order  in  Council  of 
March  15th,  already  referred  to.  This 
purports  to  be  a  blockade,  but  is  not,  as  was 
immediately  noted  by  the  State  Department 
of  the  United  States.  Referring  to  Germany, 
the  British  declaration  recites:  "Her  oppo- 
nents therefore  are  driven  to  frame  retaliatory 
measures  in  order  in  their  turn  to  prevent 
commodities  of  any  kind  from  reaching  or 
leaving  Germany";  and  adds,  after  noting 
that  a  humane  method  of  enforcement  will 
be  adopted,  "It  is  not  intended  to  confiscate 
such  vessels  or  cargoes  unless  they  would 
otherwise  be  liable  to  condemnation."  To 
which,  as  part  of  a  longer  note,  the  United 
States  properly  replied  March  5th:  "While 


114    Neutral  Rights  and  Duties 

it  appears  that  the  intention  is  to  interfere 
with  and  take  into  custody  all  ships,  both 
outgoing  and  incoming,  trading  with  Ger- 
many, which  is  in  effect  a  blockade  of  German 
ports,  the  rule  of  blockade,  that  a  ship  at- 
tempting to  enter  or  leave  a  German  port 
regardless  of  the  character  of  its  cargo  may 
be  condemned,  is  not  asserted.  The  language 
of  the  declaration  is  'the  British  and  French 
governments  will,  therefore,  hold  themselves 
free  to  detain  and  take  into  port  ships 
carrying  goods  of  presumed  enemy  destina- 
tion, ownerships,  or  origin.  It  is  not  intended 
to  confiscate  such  vessels  or  cargoes  unless 
they  would  otherwise  be  liable  to  condemna- 
tion.' The  first  sentence  claims  a  right  per- 
taining only  to  a  state  of  blockade.  The 
last  sentence  proposes  a  treatment  of  ships 
and  cargoes  as  if  no  blockade  existed.  The 
two  together  present  a  proposed  course  of 
action  previously  unknown  to  international 
law." 

This  answer  set  out  those  characteristics 
of  the  British  proclamation  which  made  it 


The  Order  in  Council         115 

fall  short  of  what  neutral  nations  might 
properly  expect  in  a  declaration  of  blockade. 
Other  objections  were  summarized  by  the 
United  States  Government  under  date  of 
March  30,  191 5,  in  a  communication  which 
pointed  out  the  fact  that  neutral  sovereignty 
could  not  surrender  to  belligerents  unlimited 
rights  over  neutral  commerce  within  the 
whole  European  area;  insisted  that  neutral 
sovereignty  with  certain  exceptions  suffered 
no  diminution  in  time  of  war ;  and  complained 
that  the  limitations  placed  upon  neutral 
shipping  by  the  Orders  in  Council  were  "a 
distinct  invasion  of  sovereign  rights." 

It  is  exceedingly  fortunate  that  a  great 
neutral  Power  has  taken  such  high  ground. 
Meantime  neutrals  may  rest  assured  that  if 
the  issues  now  joined  are  ever  tried  out  the 
facts  will  show  that  neutral  Powers  have 
never  resigned  their  rights  in  certain  waters 
now  in  the  so-called  war  zone,  which  are 
necessary  to  their  trade;  that  certain  seas 
comprehended  in  the  British  Orders  in 
Council  are  absolutely  outside  of  the  control 


ii6    Neutral  Rights  and  Duties 

of  the  allied  fleets;  that  certain  other  waters 
in  which  the  Allies  are  maintaining  and  can 
maintain  great  fleets  are  not  subject  to 
control  because  of  physical  conditions  which 
nations  cannot  dominate. 


CHAPTER  XV 

SIR  EDWARD  GREY's  LETTER  DEFENDING  THE 
BRITISH   government's    "  ORDER   IN 

council"  of  march,  191 5 

T^HE  close  examination  of  an  opponent's 
"■■  argument  is  always  salutary.  Either 
our  eyes  are  opened  to  the  truth,  or  we  are 
sustained  in  our  position  by  the  realization 
that  the  other  side  is  resting  its  case  upon 
fallacies  and  inaccuracies. 

To  an  unprejudiced  citizen  of  the  United 
States  the  British  Order  in  Council  of  March, 
191 5,  inaugurated  a  policy  which  is  as  un- 
tenable as  it  is  hurtful  to  neutrals,  and  it  can 
make  no  difference  that  the  same  has  been 
adopted  with  a  sincere  desire  to  avoid 
harming  non-belligerents  as  such.  We  shall 
be  surprised  if  the  letter  of  Sir  Edward  Grey 

dated  July  23d  does  not  confirm  him  in  his 
117 


ii8    Neutral  Rights  and  Duties 

opinion.  The  official  communication  referred 
to  was  transmitted  by  the  American  Am- 
bassador the  day  after  it  was  dated.  Among 
other  points  to  sustain  his  contention  Sir 
Edward  Grey,  whose  high  quaHty  of  states- 
manship is  generally  acknowledged,  makes 
the  following  claims  and  assertions  that  may 
be  reviewed  to  advantage.  Carefully  as  these 
grounds  for  British  action  are  stated,  it  is 
impossible  that  anyone  will  be  impressed 
thereby.  They  do  not  appeal  to  reason, 
and  one  who  reads  a  copy  of  the  origi- 
nal text  cannot  readily  grant  more  than 
that  Earl  Grey  has  honestly  noted  every- 
thing, whether  convincing  or  not,  that  can 
be  said  in  support  of  what  the  nation  he 
represents  has  undertaken  as  a  matter  of  high 
state  policy. 

I .     Necessity. 

"I  read  the  communication  from  your 
Excellency's  Government,"  says  the  Foreign 
Minister's  note,  "not  as  questioning  the 
necessity  of  our  taking  all  the  steps  open  to 
us    to   cripple    the   enemy's    trade,    but    as 


Defense  of  British  Policy     119 

directed  solely  to  the  question  of  the  legiti- 
macy of  particular  measures."  While  this 
appears  to  be  an  endeavor  to  convince  oneself 
that  necessity  is  recognized  in  the  United 
States  as  excusing  an  act  not  otherwise  per- 
mitted, it  is  a  naive  admission  that  there  are 
those  who  would  limit  a  nation's  use  of  force 
to  operations  which  are  legal.  Of  course 
there  are,  and  among  them  the  Allies  them- 
selves! If  it  were  otherwise,  aggressions  of 
which  they  rightly  complain  would  have  no 
check,  and  not  only  would  enemy  nations 
repeat  violations  of  law  which  have  been 
criticized,  but  neutrals  themselves,  under 
the  same  plea,  would  put  forward  necessity 
as  an  excuse  for  unneutral  acts. 

It  is  long  since  nations  found  that  states 
at  issue  were  each  disposed  to  plead  necessity 
as  an  excuse  for  deeds  that  were  open  to 
emphatic  objection.  They  have  therefore 
preferred  to  give  less  weight  to  the  cry  of 
necessity  than  to  arguments  which  are  ad- 
vanced to  prove  that  an  adopted  policy  is 
legitimate. 


120    Neutral  Rights  and  Duties 

2.  Right  of  a  belligerent  to  blockade  neutral 
ports  if  no  other  way  presents  itself  to  reach  the 
enemy. 

This  proposition,  according  to  the  British 
minister,  rests  back  upon  the  rule  admitted 
by  the  United  States — that  a  belHgerent  has 
a  right  to  blockade  an  enemy  port ;  which  to 
the  mind  of  the  apologist  is  nothing  more  nor 
less  than  "cutting  off  the  sea  borne  exports 
and  imports  of  the  enemy."  The  argument 
runs  somewhat  like  this,  viz. :  If  you  cannot 
get  at  the  enemy  port  to  blockade  it,  and 
find  that  the  latter  is  receiving  supplies 
through  neutral  harbors,  then  you  are  at 
liberty  to  blockade  the  aforesaid  neutral 
harbors  because  you  have  a  right  to  cut 
off  "sea  borne  exports  and  imports  of  the 
enemy."  Of  course,  the  objection  to  this 
presentation  of  the  case  lies  in  the  erroneous 
assumption  that  the  right  to  blockade  an 
enemy  port  is  simply  a  phase  of  a  supposed 
right  (which  does  not  exist)  to  cut  off  the 
latter's  commerce  by  any  convenient  means. 
With  the  elimination  of  this   necessary  bit 


Defense  of  British  Policy     121 

of  scaffolding,  the  carefully  constructed  ar- 
gument must  collapse. 

3.  That  the  Civil  War  blockade  of  the 
southern  coast  of  the  United  States  offers  a 
precedent  in  so  Jar  as  it  was  an  extension  oj 
former  practices. 

It  is  true  that  the  Civil  War  precedents, 
such  as  that  referred  to,  marked  an  extension 
of  familiar  practices,  but  it  will  be  difficult  for 
the  keenest  mind  to  find  any  analogy  between 
American  innovations,  and  that  which  is 
introduced  by  the  Order  in  Council  which  is 
under  discussion.  To  the  contrary,  students 
of  international  law,  with  the  cases  of  the 
Peter hoff  and  the  Springbok  in  mind,  will  re- 
call how  the  Supreme  Court  of  the  United 
States  recognized  the  fact  that  nations  are 
limited  by  unvarying  principles,  and  in 
developing  the  doctrine  of  the  continuous 
voyage,  differentiated  between  belligerent 
authority  to  seize  contraband  and  to  extend  a 
blockade  to  neutral  waters,  a  practice  which 
it  refused  to  countenance. 

4.  Convenience  of  neutral  ports  to  enemy  use. 


122    Neutral  Rights  and  Duties 

"Adjacent  to  Germany,"  says  Earl  Grey, 
"are  various  neutral  countries  which  afford 
them  convenient  opportunity  for  carrying 
on  trade  with  other  countries."  He  cites 
Rotterdam  as  better  suited  for  certain  enemy 
purposes  than  the  ports  of  the  latter.  It  is 
impossible  to  understand  how  this  juxta- 
position of  neutral  to  enemy  harbors  gives  a 
belligerent  any  rights  whatever  over  the 
former.  If  railways  and  waterways  make 
neutral  docks  available  to  enemy  use,  that  is 
the  other  belligerent's  misfortune.  Austria 
has  submitted  a  memorandum  on  the  United 
States'  export  of  munitions  to  the  Allies,  and 
would  have  it  prohibited  because  the  "Cen- 
tral Powers  "  cannot  share  in  the  trade.  Here 
is  an  instance  where  situation  and  naval 
preparation  favor  the  Allies.  International 
law  like  municipal  law  is  fixed  and  cannot  be 
adjusted  to  meet  particular  circumstances. 
The  fact  that  Germany  connects  overland 
with  nearby  neutral  seaports  gives  other 
belligerents  no  right  to  adapt  existing  law  so 
as  to  make  this  marked  advantage  valueless. 


Defense  of  British  Policy      123 

5.  That  the  interception  of  neutral  commerce 
intended  for  enemy  use  by  one  belligerent, 
before  it  has  reached  or  after  it  has  left  a  neutral 
state,  is  a  justifiable  ''counterpoise''  to  the 
freedom  with  which  the  other  belligerent  may 
send  his  commerce  across  a  neutral  country 
without  prejudicing  the  latter' s  neutrality. 

That  such  an  interception  is  a  "counter- 
poise" everyone  will  agree,  that  it  is  justifi- 
able cannot  be  sustained.  The  neutral  Power 
concerned  is  a  sovereign  entity.  It  is  for  it 
to  say  what  it  will  permit,  and  it  is  perfectly 
free  to  continue  both  its  inland  and  overseas 
trade  with  either  belligerent,  however  useful 
to  the  latter,  and  obnoxious  to  its  opponent, 
without  other  interference  than  such  as  may 
arise  by  reason  of  its  own  concession  (contra- 
band) or  the  belligerent  blockade  of  enemy 
(not  neutral)  ports. 

6.  That  an  extension  of  the  principle  of 
blockade  is  defensible  if  the  latter  is  thereby 
made  effective. 

This  is  a  curious  and  unusual  argument 
that  probably  few  will  remember  to  have 


124    Neutral  Rights  and  Duties 

seen  advanced  elsewhere.  The  word  effective 
in  reference  to  blockade  has  to  do  with  the 
physical  assertion  of  sovereignty  over  enemy 
waters.  It  is  intended  to  define  the  quaUty 
of  naval  investment.  Whether  or  not  a 
blockade  actually  exists,  therefore,  depends 
upon  pressure  from  without  a  port,  rather 
than  upon  conditions  within  enemy  territory 
that  appear  to  result  from  belligerent  at- 
tempts to  institute  some  sort  of  a  blockade. 
If  it  were  otherwise  a  belligerent  might  argue 
{post  hoc  ergo  propter  hoc)  that  a^  failure  of 
enemy  crops  caused  by  unseasonable  weather 
was  the  direct  result  of  an  inconsequential 
demonstration  by  the  said  belligerent's  ships. 
To  blockade  neutral  ports  and  claim  that  any 
following  distress  of  the  enemy,  even  if  caused 
thereby,  made  the  blockade  effective,  is  a 
proposition  that  will  not  be  readily  accepted. 
7.  That  Great  Britain  is  not  interfering  with 
any  trade  which  she  would  not  have  a  right  to 
close  by  blockade  "if  the  geographical  position^* 
of  the  enemy  was  "such  that  her  commerce 
passed  through  her  own  ports.'' 


Defense  of  British  Policy     125 

This  is  gravely  to  be  doubted.  A  belliger- 
ent can  hardly  assume  the  control  over 
neutral  shipping  that  Great  Britain  is  exercis- 
ing in  the  so-called  "zone,"  without  working 
mischiefs  quite  apart  from  the  embarrass- 
ment caused  neutrals  by  a  legitimate  block- 
ade. Meanwhile  it  is  not  apparent  why  the 
aforesaid  Power  should  be  entitled  to  exercise 
privileges  that  would  only  accrue  if  geographi- 
cal conditions  were  absolutely  different  from 
what  they  are. 

8.  That  the  so-called  blockade  only  bars 
forbidden  neutral  trade. 

If  this  is  a  fact,  and  it  cannot  be  overlooked 
that  the  statement  is  contested,  it  does  not 
by  any  means  excuse  a  breach  of  international 
usage.  Even  police  officers  under  municipal 
law  are  restricted  in  the  steps  which  they 
take  to  possess  themselves  of  that  which 
they  are  authorized  to  seize.  It  is  not  other- 
wise with  nations! 

Such  are  some  of  the  more  important 
points  which  the  eminent  British  Minister 
makes  in  his  endeavor  to  justify  the  Order 


126    Neutral  Rights  and  Duties 

in  Council.  They  can  hardly  be  taken  as 
other  than  a  serious  attempt  of  the  English 
leaders  to  vindicate  action  regarding  the 
validity  of  which  they  must  entertain  grave 
doubts.  Three  facts  support  the  conclusion 
that  the  aforesaid  statesmen  are  not  alto- 
gether at  peace: 

1.  The  pains  which  they  have  taken  to 
assure  neutrals  of  their  desire  to  construe 
the  unfortunate  decree  as  liberally  as  is 
practicable. 

2.  Their  own  acquirements  which  make 
it  improbable  that  they  can  long  remain  self- 
deceived. 

3.  The  recent  and  significant  declaration 
which  makes  cotton  contraband,  which  may 
be  a  step  toward  extricating  themselves 
from  an  untenable  position. 


CHAPTER  XVI 

PRELIMINARY     COMMENTS    ON     THE    LAW     OF 
CONTRABAND 

/CHANCELLOR  KENT  briefly  but  suffi- 
^•^  ciently  defines  contraband  of  war  as 
goods  which  neutrals  may  not  carry  in  time 
of  war  to  either  of  the  belligerent  nations 
without  subjecting  themselves  to  the  loss  of 
the  goods.  He  might  have  added  that  the 
law  of  contraband  works  as  much  mischief 
for  neutrals  as  does  the  law  of  blockade,  and 
is  as  arbitrary  as  the  latter  is  rational  and 
explicable.  For  where  blockade  is  explained 
by  a  logical  extension  of  belligerent  sover- 
eignty over  waters  formerly  within  the 
sphere  of  enemy  influence,  contraband  (recog- 
nized by  the  nations  as  equally  restricting 
their  freedom  of  trade)  rests  on  nothing  but 

the  self-assertive  and  dogmatizing  insistence 
127 


128    Neutral  Rights  and  Duties 

of  war  powers  so  long  acquiesced  in  as  to 
make  it  respectable. 

It  is  one  thing  for  the  individual,  who  has  a 
private  quarrel  with  another,  to  insist  that 
third  parties  shall  not  make  him  relax  a 
strangle  grip  upon  his  opponent.  It  is 
another  thing  to  hold  up  and  search  any- 
individual  found  in  the  immediate  neighbor- 
hood of  the  enemy's  residence  and  seize  such 
of  his  belongings  as  may  be  intended  for 
enemy  use.  In  the  one  case  the  combatant 
resents  interference  with  an  immediate 
exercise  of  a  sovereign  right  to  do  to  another 
what  the  other  would  do  to  him  if  he  had  the 
power.  In  the  second  instance  he  interferes 
with  the  sovereign  rights  of  third  parties 
who  are  as  privileged  to  maintain  peaceful 
relations  with  the  enemy  as  he  is  to  follow  a 
different  course. 

That  the  situation  is  precisely  similar  in 
the  matter  of  independent  states  must  be 
admitted  by  those  agreeing  with  inter- 
national lawyers  who  are  in  accord  touching 
two  points:   (i)   That    each    self-governing 


Regarding  Contraband        129 

nation  is  possessed  of  absolute  sovereignty — 
a  self-evident  statement — and  (2)  that 
Powers  not  at  war  have  a  right  to  trade  with 
belligerents  within  spheres  not  under  enemy- 
control,  a  proposition  which  seems  to  have 
the  unquestioned  indorsement  of  the  Supreme 
Court  of  the  United  States  as  set  out  in  the 
Bermuda,  and  of  Lord  Stowell,  who,  in  the 
Immanuel  (2  C.  Rob.  Adm.  Rep.,  p.  198), 
goes  so  far  as  to  say:  "The  general  rule  is 
that  the  neutral  has  a  right  to  carry  on,  in 
time  of  war,  his  accustomed  trade  to  the 
utmost  extent  of  which  that  accustomed 
trade  is  capable." 

If  the  analogy  is  a  proper  one,  and  if  the 
statements  thus  made  are  correct,  how  can 
a  belligerent  justify  its  aggressive  inter- 
meddling with  neutral  activities?  Chiefly 
on  the  ground  of  precedent,  which  in  inter- 
national and  in  municipal  law  is  invaluable 
as  a  guide  to  the  courts,  but  which  while 
lending  stability  to  human  institutions  has 
not  infrequently  blocked  progress  because 
founded  on  wrong  premises. 


130    Neutral  Rights  and  Duties 

To  the  time  of  Grotius,  modem  as  well  as 
ancient  states  had  either  submitted  to  the 
dominant  will  of  an  overbearing  Power,  or 
looking  upon  each  other  suspiciously,  avoided 
the  acceptance  of  other  rules  affecting  their 
mutual  relations  than  those  which  were 
thrust  upon  them.  Thus  the  most  warlike 
nation,  selfishly  pushing  its  own  interests, 
had  always  carried  weight  in  world  councils 
proportioned  to  its  aggressive  spirit;  and 
laws  which  it  did  not  dictate  were  shaped  by 
peoples  who  avoided  intercoiu-se  except  when 
trying  out  their  grievances  by  arms,  and 
who  were  accustomed  to  look  upon  neighbor- 
ing countries,  that  were  not  in  alliance,  as 
directly  or  indirectly  serving  the  purposes  of 
the  enemy.  It  is  not  surprising  that  with 
human  society  thus  minded,  the  individual 
rights  of  states  were  as  much  if  not  more 
neglected  than  the  right  of  persons.  Treaties 
that  were  made  and  treaties  that  were 
written  disregarded  the  non-combatant  except 
to  lay  upon  It  such  burdens  as  the  selfish 
interests  of  belligerents  might  exact,  and  a 


Regarding  Contraband        131 

body  of  law  came  into  being  based  upon 
theories  which  are  discredited  to-day. 

Incorporated  in  this  compendium  of  legal 
requirement  is  the  doctrine  of  contraband — 
now  assented  to  for  so  many  years,  either 
through  fear  or  as  a  voluntary  waiver  of 
right,  that  until  some  modification  is  gen- 
erally recognized,  it  must  be  accepted  in  its 
broad  provisions  as  reflecting  the  wish  of  the 
nations. 

Positive  law  then  is  on  the  side  of  the 
belligerent  who  pushes  the  law  of  contraband 
to  its  limit,  however  the  fact  negatives 
propositions  as  to  national  sovereignty  and 
freedom.  Nor  is  the  latter  without  certain 
arguments  to  reinforce  its  legal  position. 
One  of  these  rests  upon  the  theory  that  a 
combatant  which  joins  in  a  fierce  struggle 
with  an  opponent  may  properly  view  as  in- 
terested and  inimical  any  act  of  a  neutral, 
however  trivial,  which  strengthens  the  enemy. 
Phillimore  gives  two  quotations  to  illustrate 
certain  aspects  of  this  position. 

The    first    is    from    Demosthenes:  "That 


132    Neutral  Rights  and  Duties 

person,  whoever  he  be,  who  prepares  and 
provides  the  means  of  my  destruction,  he 
makes  war  upon  me,  though  he  have  never 
cast  a  javelin  or  drawn  a  bow  against  me." 

The  second  is  from  Lord  Grenville  in  the 
letters  of  Sulpicius:  "If  I  have  wrested  my 
enemy's  sword  from  his  hands,  the  by- 
standers who  furnish  him  with  a  fresh 
weapon  can  have  no  pretense  to  be  considered 
as  a  neutral  in  the  contest." 

With  such  pleas  before  him  the  reader  is 
apt  to  accept  the  contentions  of  the  old 
publicist  who  refused  to  recognize  any  such 
thing  as  neutrality,  and  who  claimed  what 
undoubtedly  is  measurably  true:  (i)  That 
every  non-combatant  is  prejudiced  for  or 
against  either  party  to  a  struggle;  and  (2) 
that  this  attitude  brings  all  so-called  non- 
combatants  into  the  melee  on  one  side  or  the 
other. 

The  trouble  with  this  claim,  which  involves 
third  parties  in  a  war  that  is  not  of  their 
making,  is  that  the  neutral's  right  to  trade, 
except  as  hampered  by  law,  is  worthy  of 


Regarding  Contraband        133 

greater  consideration,  even  if  that  is  done 
which  indirectly  benefits  the  enemy,  than  is 
any  belligerent  right  to  stop  such  neutral 
intercourse  with  the  enemy  as  it  believes  to 
be  disadvantageous. 

It  would  be  well  enough  if  war  was 
accepted  either  by  natural  or  positive  law 
as  representing  the  normal  status  of  the  race. 
Then  a  belligerent  might  properly  set  out 
that  its  interests  as  such  were  supreme,  and 
that  neutrals  must  subordinate  their  concerns 
to  those  of  a  nation  which  had  upset  the 
economic  balance  of  the  world. 

Fortunately  the  facts  are  different  now, 
whatever  they  were  aforetime.  The  twen- 
tieth century  views  with  equanimity  such  an 
interchange  of  national  courtesies  as  binds 
states  together  and  promotes  commercial 
relations,  and  abhors  the  economic  upheaval 
that  follows  closely  in  the  trail  of  war.  It 
therefore  views  belligerency  as  something 
abnormal  which  is  to  be  restrained — not 
encouraged. 

The  other  argument  to  sustain  the  legal 


134    Neutral  Rights  and  Duties 

right  which  the  belligerent  unquestionably 
enjoys  under  the  existing  law  of  contraband 
may  be  based  upon  the  presumption  that 
contraband  is  an  extension  of  the  defensible 
doctrine  of  blockade  which  commends  itself 
to  human  intelligence.  In  blockade,  as  has 
been  seen,  a  belligerent  by  assuming  a 
proprietorship  of  certain  waters,  which  it  is 
able  to  enforce,  seizes  and  condemns  all 
vessels  which  venture  therein. 

Why,  then,  says  the  apologist,  should  not 
the  same  belligerent  try  to  seize  neutral 
vessels  before  they  reach  the  zone  which  it  is 
effectively  patrolling?  By  so  doing  it  accom- 
plishes the  same  results  that  follow  an  effec- 
tive blockade. 

The  answer  is  simple  enough.  Partly 
because  the  apprehension  of  the  neutral 
under  such  circumstances  is  uncertain,  but 
more  particularly  because  the  seizure  takes 
place  in  seas  that  are  under  no  limited  juris- 
diction, and  in  which  the  neutral  has  as  good 
a  right  as  the  belligerent. 

Thus  another  plea  for  existing  law  breaks 


Regarding  Contraband        135 

down,  and  with  the  effect  of  persuading  many 
that  if  the  doctrine  of  contraband  is  to 
remain  unqualified,  opportunities  for  inter- 
national misunderstanding  and  abuse  will 
continue  indefinitely. 

It  would  be  better  to  curtail  the  powers  of 
the  belligerent  as  far  as  wide  capture  and 
condemnation  are  concerned.  The  aggrieved 
nation  could  then  make  such  diplomatic 
representations  as  its  interests  might  require : 
refer  the  matter  to  any  international  or  other 
tribunal  having  jurisdiction;  or  take  forcible 
action  on  the  ground  that  the  practices  of 
the  supposed  neutral  were  unfriendly  and 
constituted  a  casus  belli. 


CHAPTER  XVII 

THE  UNSATISFACTORINESS   OF  THE  DOCTRINE 
OF  CONTRABAND 

T^HERE  is  a  good  deal  of  nonsense  about 

-■■       contraband.     This  must  have  occurred 

to  the  sages  whose  treatises  gravely  rehearse 

the  undoubted  facts  as  to  usage.    If  so,  they 

have  felt  the  restraint  of  the  period  in  which 

they  have  written,  and  have  abstained  from 

critical  comment  lest  confusion  follow.    Thus 

from  Grotius  to  Oppenheim  the  student  is 

furnished    with   possible,    but   not   positive, 

lists  of  neutral  goods  and  chattels  that  are 

viewed  askance  by  belligerents.     These  are 

classified  variously  but  most  satisfactorily  as: 

Articles  that  can  only  be  made  use  of  in 

time  of  war,  which  include  arms,  munitions, 

military  accoutrements,  etc.,  referred  to  by 

the  London  Convention  as  absolute  contra- 
136 


An  Unsatisfactory  Doctrine   137 

band ;  articles  that  can  never  be  made  use 
of  in  times  of  war,  characterized  under  the 
London  Convention  as  free  goods — articles 
of  luxury  are  supposed  to  be  of  this  nature; 
articles  that  may  or  may  not  be  used  in  war — 
these  are  referred  to  as  having  ancipitis  usus 
by  Grotius.  They  include  provisions,  money, 
ships,  and  articles  of  naval  equipment  which 
have  a  double  use  and  which  may  or  may  not 
be  contraband. 

International  lawyers  are  agreed  as  to  the 
character  of  these  lists  as  they  are  in  their 
broad  statements  regarding  the  doctrine  of 
contraband.  Further  than  this,  however, 
they  did  not  dare  to  go  until  the  London 
Convention,  when  steps  were  taken  partly 
based  upon  precedents,  partly  on  compromise. 
Some  will  say  the  reason  for  this  lay  in  the 
fact  that  the  doctrine  of  contraband  is  an 
arbitrary  one,  resting  upon  usage,  not  upon 
principle;  others,  because  from  its  very 
nature  the  law  of  contraband  shifts  with  the 
necessities  of  the  belligerents.  Meantime 
the  Supreme  Court  of  the  United  States  has 


138    Neutral  Rights  and  Duties 

not  hesitated  to  affirm  (the  Peterhoff) :  "The 
classification  of  goods  as  contraband  or  not 
contraband  has  much  perplexed  text  writers 
and  jurists.  A  strictly  accurate  and  satis- 
factory classification  is  perhaps  imprac- 
ticable. " 

To  illustrate  this,  one  publicist  recom- 
mends that  things  which  enter  into  the 
manufacture  of  arms  and  ammunition,  of 
military  supplies  and  of  absolute  contraband, 
be  regarded  as  themselves  absolute  contra- 
band, to  which  the  response  is  made — That 
as  almost  every  commodity  known  to  com- 
merce enters  into  the  manufacture  of  various 
things  having  a  military  use,  it  may  be  as 
well  to  make  everything  contraband. 

There  is  enough  virile  sense  in  the  sugges- 
tion thus  made  to  encourage  independent 
thinking.  It  is  manifestly  absurd  to  cut  off 
from  a  belligerent  weapons  of  war,  and  at 
the  same  time  permit  all  the  ingredients 
which  enter  into  the  manufacture  of  such 
weapons  to  be  freely  shipped.  The  only 
difference  to  the  enemy  would  lie  in  the  cost 


An  Unsatisfactory  Doctrine    139 

of  manuiacture  and  the  time  taken  for 
construction.  The  weapons  would  ultimately 
be  provided.  Yet  departments  of  state  in- 
terchange notes  regarding  the  status  of  this 
and  the  other  product,  as  if  there  were  some 
kind  of  cleavage  by  which  the  Almighty  had 
differentiated  contraband  from  noncontra- 
band. 

To  the  untrammeled  intelHgence  this  must 
all  appear  like  a  very  roundabout  and  un- 
reasonable way  of  dealing  with  a  great 
problem.  To  such  a  mind  the  facts  indicate 
that  neither  belligerent  wishes  trade  of  any 
sort  carried  on  with  the  other.  '  his  embraces 
the  free  list  of  articles  positively  not  used  in 
war  as  well  as  military  supplies.  The  whole 
matter  is  relative.  Neutral  shipping  of 
cannon  to  an  enemy  is  one  hundred  per  cent, 
abominable  to  the  belligerent,  but  toilet 
articles  may  convey  some  sense  of  comfort, 
and  therefore  are  objectionable  if  only  one 
per  cent.  Why  dicker  and  fuss  over  lists 
of  crude  and  manufactured  goods  that  may 
or  may  not  be  carried  in  neutral  bottoms? 


140    Neutral  Rights  and  Duties 

There  is  no  possibility,  as  witness  the 
experience  of  the  schedules  volunteered  by 
the  London  Conference,  that  there  will  ever 
be  such  unanimity  among  the  nations  as  to 
crystallize  into  two  different  groups  the 
prohibited  and  the  unprohibited.  It  were 
better,  therefore,  for  a  belligerent  either  to 
permit  trade  between  neutrals  and  the  enemy 
or  to  block  the  same  entirely.  Either  course 
would  be  less  confusing  than  the  present 
method  of  procedure. 

For  the  purpose  of  studying  the  matter 
further  let  us  imagine  a  belligerent  as  giving 
notice  that  all  articles  of  commerce  would  be 
considered  contraband.  What  would  follow? 
If  the  belligerent  was  a  powerful  nation,  able 
to  impose  its  will  upon  a  neutral  trading 
people,  it  would  undoubtedly  have  its  way. 
If  it  were  not,  its  requests,  representations, 
and  prayers  would  go  unheeded.  Satisfied 
that  it  was  able  to  keep  the  objecting  belliger- 
ent off  with  one  hand,  and  turn  over  its 
goods  with  the  other,  the  neutral  would 
continue  to  follow  the  course  best  suited  to 


An  Unsatisfactory  Doctrine    141 

its  interests.  Why  should  it  not?  It  has 
sovereignty.  The  quarrel  (mayhap  across 
seas)  does  not  interest  it.  Is  there  any 
reason  why  it  should  indefinitely  affect  the 
resources  of  its  own  citizens,  and  refuse  trade 
with  a  friendly  Power  because  warned  that 
this  did  not  please  a  third  party? 

The  result  of  facing  difficulties  in  this 
frank,  if  embarrassing,  manner  would  stimu- 
late statesmen  to  do  some  original  thinking. 
Thus  far  they  have  been  content  to  abide  by 
the  rulings  of  doctrinaires,  or  to  work  out 
some  such  petty  subterfuge  as  is  the  resource 
of  the  opportunist.  If,  under  pressure, 
trained  minds  were  content  not  only  to 
eliminate  that  which  is  superficial  in  the 
law  of  contraband,  but  to  frame  proposals 
sufficiently  akin  to  natural  law  to  be  de- 
fensible, it  is  not  unlikely  that  their  overtures 
by  pushing  the  law  of  blockade  to  a  reason- 
able limit  would  leave  the  combatant  that 
which  it  appears  to  be  entitled  to,  as  far  as 
neutrals  are  concerned,  and  relieve  the  lat- 
ter from  a  thousand  embarrassments  which 


142    Neutral  Rights  and  Duties 

may  readily  be  the  cause  of  extending  the 
war. 

It  cannot  be  denied  that  such  a  suggestion 
has  a  visionary  element  when  viewed  from 
the  standpoint  of  the  past.  This  is  because 
the  world  has  been  content  to  proceed  along 
lines  laid  by  academic  thinkers  (who  have 
not  infrequently  adopted  wrong  premises) 
and  by  far  from  disinterested  treaty  makers. 

If,  however,  the  astounding  changes  that 
have  come  about  with  the  elimination  of  time 
and  space  by  scientific  and  commercial 
activity  should  ever  throw  the  remodeling 
of  international  law  into  the  hands  not  only 
of  professors  and  jurists,  who  are  indis- 
pensable, but  of  men  of  affairs,  who  have 
promoted  large  enterprises  by  straightfor- 
wardness and  simplicity,  and  of  officers 
trained  in  a  large  way  by  army  and  navy  ser- 
vice, the  law  of  contraband,  as  it  now  exists, 
will  be  roughly  handled.  Why  should  it  not 
be?  Can  any  system  more  ridiculous  than 
that  which  is  now  law  be  shaped  up? 

Under  the  prevaiHng  doctrine  a  belligerent 


An  Unsatisfactory  Doctrine    143 

nation  of  one  million  inhabitants,  with  an 
insignificant  navy,  is  automatically  in  posi- 
tion after  hostilities  are  joined,  and  with 
proper  advertisement,  to  seize  and  confiscate 
all  the  articles  of  a  certain  nature  that  its 
warships  find  in  the  vessels  of  a  nation  whose 
population  is  from  fifty  to  a  hundred  times 
greater,  and  to  do  this  in  the  broad  water- 
ways of  the  world  over  which  it  has  no 
jurisdiction. 

This  is  not  all :  by  proper  announcement  it 
may  add  to  the  lists  of  contraband  about 
every  product  that  it  pleases  and  put  itself 
in  a  position  to  do  thrice  the  harm  to  neutrals 
that  it  can  ever  do  to  the  enemy,  all  with  the 
apparent  seal  of  unquestioned  authority. 
Such  is  a  possible,  if  hypothetical,  instance. 
Innumerable  others  will  occur  to  anyone 
who  cares  to  give  the  matter  thought.  For 
our  present  purpose  one  case  is  sufficient — • 
let  us  bear  it  in  mind  as  we  more  particularly 
review  the  law  of  contraband  as  it  stands, 
and  should  be  observed  tmtil  such  time  as 
amendment  can  be  made. 


CHAPTER  XVIII 

GENERAL  RULES — ABSOLUTE  CONTRABAND 

TN  the  interest  of  neutral  nations,  which  in 
*-  ordinary  times  must  compose  by  far  the 
majority  of  civilized  states,  these  pages  have 
set  out  some  of  the  incongruities  and  un- 
satisfactory features  of  contraband,  without 
more  particularly  discussing  recent  and 
present  practice  than  to  call  attention  to 
the  three  classes — "absolute  contraband," 
"free  goods,"  and  "ancipitis  usus'' — into 
which  it  has  been  divided. 

It  is  now  proposed  to  deal  with  the  subject 
specifically  by  referring  to  a  few  general 
rules,  giving  examples  of  contraband  assigned 
to  each  of  the  above  classes,  and  noting 
certain  extensions  of  the  doctrine.  General 
rules  may  be  summed  up  as  follows : 

I.  Contraband    is    limited    to    goods    or 
144 


General  Rules — Contraband   145 

commodities  shipped  by  a  neutral  for  enemy 
use. 

2.  The  carrying  of  contraband  is  in  defiance 
of  belligerent  requirements,  and  belligerents 
(it  must  be  regretfully  stated)  are  by  inter- 
national consent  placed  for  this  piupose  in 
control  of  all  trade  routes.  A  belligerent  can 
therefore  confiscate  in  belligerent  or  open 
seas  (not  in  neutral  waters)  the  captured 
cargo  of  a  vessel  bound  to  an  enemy  port, 
or  which  will  touch  at  an  enemy  port,  on 
its  way  to  a  neutral  destination — provided 
the  goods  are  such  as  become  contraband 
when  destined  for  the  enemy. 

3.  The  fact  that  a  cargo  of  contraband  is 
intended  for  a  neutral  or  bound  to  a  neutral 
port  will  not  help  the  owner,  if  it  appears 
that  the  forbidden  goods  are  to  be  trans- 
shipped to  the  enemy.  This  has  to  do  with 
the  doctrine  of  the  continuous  voyage.  It 
appears  to  make  no  difference  whether  one  or 
more  neutral  ports  intervene  before  the  goods 
are  delivered  to  the  enemy,  or  whether  they 
leach  the  latter  by  land  or  sea  carriage. 


146    Neutral  Rights  and  Duties 

4.  There  are  certain  articles  {ancipitis  usus) 
which  can  be  used  for  war  or  not,  which  it  is 
yet  clear  would  be  of  great  advantage  to  the 
enemy,  if  shipped  to  places  held  by  its  armies 
or  navies,  to  fortified  places,  or  to  the  govern- 
ment and  its  subsidiaries.  Such  commodi- 
ties are  known  as  conditional  contraband, 
and  are  exposed  to  seizure  and  confiscation. 

5.  A  vessel  cannot  be  captured  which  has 
delivered  contraband  and  is  homeward 
bound. 

6.  All  goods  belonging  to  the  owner  of 
contraband  and  forming  part  of  the  same 
cargo  may  be  confiscated,  and  the  vessel 
itself  may  be  contraband. 

7.  Vessels  bearing  contraband  must  be 
taken  to  a  prize  court. 

8.  There  is  some  recognition  given  to 
belligerent  rights  to  preempt  neutral  vessels 
and  cargo  not  clearly  contraband;  Phillimore 
writes  more  at  length  on  the  subject  than 
later  English  authorities. 

These  regulations  are  given,  not  as  crystal- 
lized  and   authoritative,   but   as   presenting 


General  Rules — Contraband   147 

reasonable  ground  for  recognition  in  the  fact 
that  they  are  offered  by  the  Declaration  of 
London,  and  have  been  accepted  for  some 
time  by  a  respectable  group  of  Powers. 
That  much  is  unsettled  as  to  their  final  form 
and  interpretation  will  readily  appear  to 
anyone  who  reviews  the  matter  historically. 

Meantime,  if  there  is  doubt  in  regard  to 
general  rules,  there  is  absolute  confusion  in 
the  classification  of  goods  and  commodities 
that  may  or  may  not  fall  under  the  law  of 
contraband.  Taking  these  up  in  order  we 
find  eminent  publicists  listing  most  of  the 
following  articles,  because  of  their  special 
adaptation  to  military  use,  as  absolute 
contraband.  The  Hst  is  affirmed  in  toto  by 
the  Declaration  of  London: 

I.  Arms,  including  arms  for  sporting  pur- 
poses, and  their  parts;  2.  Projectiles,  charges, 
and  cartridges  of  all  kinds  and  their  parts; 
3.  Powder  and  explosives,  specially  prepared 
for  use  in  war;  4.  Gun  mountings,  limber 
boxes,  limbers,  military  wagons,  field  forges, 
and   their   parts;   5.  Military   clothing   and 


148    Neutral  Rights  and  Duties 

equipment;  6.  Military  harnesses;  7.  Saddle, 
draught,  and  pack  animals  suitable  for  use  in 
war;  8.  Articles  for  camp  equipment  and 
their  parts;  9.  Armor  plates;  10.  War-ships, 
including  boats  and  their  distinctive  com- 
ponent parts  of  such  a  nature  that  they  can 
only  be  used  on  a  vessel  of  war;  11.  Im- 
plements and  apparatus  designed  exclusively 
for  the  manufacture  of  munitions  of  war,  and 
for  the  manufacture  or  repair  of  arms  or  of 
war  material  for  use  on  land  or  sea. 

No  notice  is  required  in  the  case  of  the 
above  articles,  but  to  these  is  attached  a 
first  class  of  conditional  contraband  which 
becomes  absolute  only  "after  special  declara- 
tion and  notification, "  viz.: 

I.  Foodstuffs;  2.  Forage  and  grain;  3. 
Clothing,  fabrics  for  clothing,  and  boots  and 
shoes  for  use  in  war ;  4.  Gold  and  silver,  etc. ; 
5.  Vehicles  of  all  kinds  available  for  use  in 
war  and  their  parts;  6.  Vessels  and  craft, 
docks  and  their  parts;  7.  Railway  material 
and  stock,  material  for  telegraph  and  tele- 
phone; 8.  Balloons  and  flying  machines  and 


General  Rules — Contraband   149 

accessories;  9.  Fuel  and  lubricants;  10. 
Powder  and  explosives  (not  specially  pre- 
pared for  war  use);  11.  Barbed  wire  and 
implements  for  cutting,  etc.;  12.  Horseshoes 
and  shoeing  material;  13.  Harness  and  sad- 
dlery; 14.  Field-glasses,  telescopes,  chronom- 
eters, and  all  kinds  of  nautical  instruments. 

These  lists  have  been  given  in  full  that 
they  may  be  studied  in  connection  with  the 
notices  given  by  the  present  warring  Powers. 
On  August  5,  19 14,  the  United  States 
Ambassador  in  London  received  from  the 
British  Foreign  Office  a  list  declared  by  it 
to  be  absolute  and  conditional  contraband, 
especially  during  the  present  war.  Section 
I  included  the  list  referred  to  above  as 
absolute  contraband  of  the  first  class,  which  is 
practically  that  of  the  London  Declaration 
with  the  exception  that  an  additional  group 
of  articles  was  substituted  for  those  marked 
II,  the  latter  being  designated  as  12. 

The  new  group  (11)  included  aeroplanes, 
airships,  balloons,  and  aircraft  of  all  kinds 
and   their  component   parts,   together  with 


150    Neutral  Rights  and  Duties 

accessories  and  articles  recognized  as  in- 
tended for  use  in  connection  with  balloons 
and  aircraft.  Schedule  II.,  the  list  referred 
to  above  as  conditional  contraband  (becom- 
ing absolute  on  declaration),  included  thir- 
teen groups  instead  of  the  fourteen  of  the 
London  Declaration,  the  eighth  group,  com- 
posed of  balloons  and  flying  machines,  being 
eliminated  and  made,  as  has  been  noted, 
group  1 1  under  Schedule  I. 

On  August  II  and  September  9,  1914, 
the  French  and  Russian  governments  re- 
spectively adopted  the  schedules  for  absolute 
contraband  earlier  proclaimed  by  the  British 
government.  It  remains  for  us  in  another 
chapter  to  note  the  changes  that  have 
followed  with  the  succeeding  months. 


CHAPTER  XIX 

CONTRABAND   AS    FURTHER   DEFINED    BY 
RECENT    PROCLAMATIONS 

A  TTENTION  has  been  called  to  the  fact 
■**■  that  shortly  after  the  outbreak  of  the 
war  the  Allies  adopted  Articles  22  and  24 
of  the  Declaration  of  London  which  desig- 
nates, with  minor  changes,  eleven  groups 
of  absolute  contraband  and  fourteen  groups 
which  belong  to  the  first  class  of  conditional 
contraband. 

Sept.  4,  19 14,  Ambassador  Gerard  notified 
the  United  States  Secretary  of  State  that  he 
found  the  list  which  the  German  Government 
intended  to  treat  as  contraband  agreed  with 
the  same  articles,  and  on  Sept.  7th,  Ambassa- 
dor Penfield  followed  with  a  similar  announce- 
ment for  the  Austro-Hungarian  Government 
from  Vienna.  The  latter  date  marks  the 
151 


152    Neutral  Rights  and  Duties 

nearest  approach  which  the  belligerent  Powers 
came  to  putting  in  practice  the  formal 
provisions  of  an  instrument  which  was 
supposed  to  reflect  the  best  thought  of  their 
statesmen,  and  which  had  been  drafted  to 
meet  the  exigencies  of  war. 

Hardly  had  the  United  States,  under 
date  of  Oct.  22,  1914,  withdrawn  the  sug- 
gestion to  the  European  combatants  "that 
the  Declaration  of  London  be  adopted  as 
a  temporary  code  of  naval  warfare,"  than 
Great  Britain,  Oct.  29,  1914,  supplementing 
a  proclamation  of  Sept.  21st,  of  the  same 
year,  consolidated  lists  of  contraband  already 
published  with  additions  thereto.  This  new 
list  added  to  Schedule  I.  (absolute  contra- 
band) :  Sulphuric  acid ;  range  finders  and 
their  component  parts ;  hematite  iron  ore  and 
hematite  pig  iron;  iron  pyrites;  nickel  ore 
and  nickel;  ferrochrome  and  chrome  ore; 
copper  un wrought;  lead,  pig,  sheet  or  pipe; 
aluminium;  ferrosilica;  barbed  wire  and  im- 
plements for  fixing  and  cutting  the  same 
(heretofore  listed  with  conditional  contraband 


Contraband  Defined  153 

of  the  first  class) ;  motor  vehicles  of  all  kinds 
and  their  component  parts;  motor  tires — 
rubber;  mineral  oils,  and  motor  spirits, 
except  lubricating  oils. 

The  list  amended  Schedule  II.  (condi- 
tional contraband  to  be  regarded  as  absolute) 
by  eliminating  barbed  wire  and  adding: 
Sulphur:  glycerine;  hides  of  all  kinds,  dry 
or  wet;  pig  skins,  raw  or  dressed;  leather, 
undressed  or  dressed,  suitable  for  saddlery, 
harness,  or  military  boots.  The  rearrange- 
ment placed  twenty-six  groups  under  the 
head  of  absolute  contraband,  and  fifteen 
under  the  head  of  conditional  contraband 
of  the  first  class,  an  addition  of  sixteen  dis- 
tinctive classes  of  goods  or  materials. 

Considerable  as  was  the  readjustment  thus 
formally  decreed,  it  proved  to  be  insufficient 
to  meet  the  requirements  of  the  United  King- 
dom, for  under  date  of  Dec.  23,  1914,  March 
10,  1915,  and  March  11,  1915,  there  were 
added  to  Schedule  I.  ingredients  of  explosives : 
Resinous  products,  camphor  and  turpentine 
(oil  and  spirit) ;  submarine  sound  signalling 


154    Neutral  Rights  and  Duties 

apparatus;  various  metals  and  ores  (added 
to  groups  already  numbered) ;  raw  wool,  wool 
tops  and  noils  and  woolen  and  worsted  yarns ; 
tin,  chloride  of  tin,  tin  ore;  castor  oil;  paraf- 
fine  wax;  copper  iodide;  hides  of  various 
sorts;  ammonia  and  its  salts,  etc.  When 
it  is  noted  that  under  the  single  head  of  ex- 
plosives twenty  or  thirty  acid,  chemicals, 
and  products  of  coal  tar  are  specifically 
mentioned,  the  list  of  forbidden  merchandise 
becomes  bewildering,  the  situation  being  in 
no  way  improved  by  the  fact  that  Class  I. 
of  Conditional  Contraband  (to  be  regarded 
as  "Absolute")  was  further  revised. 

It  is  hoped  that  this  brief  review  will 
give  the  reader  some  idea  of  the  extraor- 
dinary restraints  placed  upon  neutral  trade. 
Incomplete  as  it  is  (since  by  subsequent  pro- 
clamation of  the  French  and  Russian  govern- 
ments the  British  list  is  made  their  own), 
it  will  serve  to  indicate  the  attitude  of  the 
Allies  up  to  the  spring  of  the  current  year. 
(The  action  of  the  Central  Powers  is  less 
significant.     Not    being    in    a    position    to 


Contraband  Defined  155 

interfere  with  shipping  in  the  great  water- 
ways of  the  world,  they  have  naturally  been 
more  modest  in  their  declaration  of  prohibited 
merchandise,  but  through  Germany  under 
date  of  April  15,  19 15,  have  taken  a  step 
in  the  other  direction  by  indicating  fifteen 
groups  of  articles  which  cannot  be  declared 
contraband  of  war.) 

What  is  to  be  done  in  the  premises  ?  With 
decided  objections  to  becoming  embroiled  in 
the  cataclysm  over  seas;  with  a  feeling  that 
the  group  of  belligerents,  which  controls  the 
oceans  by  their  naval  forces,  are  within  their 
rights,  if  precedents  are  to  be  considered;  and 
with  a  large  percentage  of  its  people  sym- 
pathetically disposed  to  the  Allies'  cause — 
the  United  States  is  yet  as  definitely  affected 
as  if  it  were  itself  at  war :  (i)  By  restrictions  of 
friendly  Powers;  (2)  by  the  interpretations 
placed  upon  those  restrictions. 

Can  anything  be  suggested  to  right 
matters?  The  natural  answer  is — "No! 
Not  if  Americans  are  content  to  tramp  in 
the    beaten    path    of    custom's    treadmill." 


156    Neutral  Rights  and  Duties 

If,  on  the  other  hand,  our  people  are  keen  to 
recognize  the  necessity  of  fairly  treating 
combatants  who  are,  for  the  most  part, 
within  what  has  heretofore  been  recognized 
as  belligerent  rights,  but  eager  to  do  away 
with  doctrines  that  are  antiquated  and 
prejudicial  to  the  best  interests  of  the  race, 
they  may  readily  say  to  their  Department  of 
State : 

1 .  Use  your  good  offices  during  the  present 
war  to  secure  from  belligerents  such  modi- 
fications of  their  contraband  lists  as  will 
relieve  the  neutral  shipper  from  the  embar- 
rassment of  acting  in  constant  uncertainty 
regarding  the  sort  of  shipments  permitted 
him, 

2.  Arrange  so  that  opportunity  shall  offer 
at  the  end  of  the  war  for  the  United  States 
to  push  for  such  a  curtailment  of  the  whole 
doctrine  of  contraband  as  will  leave  neutral 
shipping  unaffected  by  belligerency  up  to  the 
moment  when  it  enters  a  war  zone.  Better, 
as  has  already  been  suggested,  that  a  loaded 
United    States   merchantman    should   enter 


Contraband  Denned  157 

forbidden  waters  with  the  anticipation  of 
having  her  entire  cargo,  whatever  its  nature, 
sequestrated,  than  that  every  exporting  house 
and  all  skippers  should  be  obliged  to  retain 
a  staff  of  expert  chemists  and  physicists  to 
tell  them  whether  or  not  their  vessels  may 
poke  their  prows  out  of  home  harbors  with- 
out being  haled  before  distant  prize  courts. 

As  matters  stand,  a  United  States  ship 
loaded  with  tooth  powder  leaves  port  with  the 
distinct  chance  of  being  overhauled  by  an 
allied  cruiser;  charged  with  carrying  contra- 
band, on  the  claim  that  the  tooth  powder 
is  nothing  more  nor  less  than  some  basic 
proposition  with  a  name  familiar  to  chemists 
only,  or  because  the  captain  of  the  war 
vessel  is  in  doubt;  and  carried  out  of  his 
course  to  await  the  decision  of  a  court  whose 
docket  is  too  crowded  to  give  him  any  hope 
of  having  his  case  adjudicated. 

The  instance  in  question  presumes  the 
captor  to  be  British  or  French.  If  it  hap- 
pened to  be  German,  under  the  Imperial  Gov- 
ernment's interpretation  of  existing  treaties. 


158    Neutral  Rights  and  Duties 

is  there  not  reasonable  ground  for  believing 
that  both  ship  and  cargo  would  be  im- 
mediately consigned  to  the  bottom  of  the 
sea? 


CHAPTER  XX 

CARRIAGE  OF  CONTRABAND — CONTINUOUS 
VOYAGE 

Wl^  have  seen  how  the  general  principles 
'  '  of  the  doctrine  of  contraband  have 
received  enough  endorsement  from  sovereign 
states  to  make  them  respectable.  We  have 
also  seen  by  reference  to  the  great  war  drama 
now  unfolding  how  the  last  and  best  attempt 
of  the  nations  to  designate  by  the  London 
Declaration  what  shall  and  what  shall  not 
be  contraband  has  failed,  thus  denying  to 
neutrals  that  which  law  is  supposed  to  furnish 
for  them,  viz.,  such  an  accurate  understand- 
ing as  to  their  rights  and  duties  as  may  pre- 
vent erroneous  action. 

With  such  a  collapse  to  advertise  the  short- 
comings of  an  artificial  doctrine  it  may  well 

be  hoped  that  the  time  is  not  far  distant 
159 


i6o    Neutral  Rights  and  Duties 

when,  instead  of  meeting  in  grave  conclaves 
to  classify  contraband,  statesmen  will  put 
all  neutral  goods  on  the  free  list  that  are 
outside  of  guarded  waters.  Until  that  time 
comes  neutral  shippers  will  have  to  think  of 
international  law  in  this  aspect  as  forbidding 
and  against  nature.  In  the  meantime  those 
of  them  that  are  informed  are  not  likely  to 
forget  that  while  the  law  which  permits 
belligerents  to  interfere  with  neutral  ships 
outside  of  the  sphere  they  dominate  is 
"international,"  the  prohibition  which  con- 
traband carrying  neutrals  break  is  "munici- 
paV;  a  fact  which  will  continue  to  make  such 
restrictions  the  more  odious,  as  well  as  the 
less  defensible. 

The  more  odious  because  they  affect  to 
control  a  citizen  who  owes  no  allegiance  to 
any  other  country  than  his  own  in  fields 
where  the  forbidding  Power  has  absolutely 
no  jurisdiction.  The  less  defensible  because 
these  restraints  lack  the  characteristics  which 
would  attach  to  them  (as  far  as  the  offender 
is  concerned)  if  the  country  of  the  latter  had 


Carriage  of  Contraband       i6i 

joined  in  their  enactment.  This  way  lies 
progress,  for  when  law  or  custom  that  is  ar- 
bitrary and  unnatural  becomes  hateful  to  the 
few  who  realize  that  they  and  their  fellows 
are  bound  hand  and  foot  thereby,  means  are 
generally  found  to  open  the  eyes  of  the  blind 
and  substitute  something  that  is  sane  and 
reasonable. 

From  an  inquiry  into  the  character  of 
articles  which  have  been  or  are  now  desig- 
nated contraband,  we  naturally  pass  to  a 
brief  discussion  of  the  carriage  of  contraband, 
which  has  had  some  reference  in  preceding 
summaries.  Here,  as  when  considering  what 
is  contraband,  we  are  at  once  plunged  into  so 
much  confusion  that  it  is  a  relief  to  quote 
the  London  Declaration,  rather  than  to  at- 
tempt to  analyze  policies  and  opinions  which 
preceded  it. 

By  this  instrument  goods  which,  if  bona 
fide  intended  for  another  neutral,  cannot  be 
meddled  with  by  a  belligerent,  are  open  to 
confiscation : 

I .     If  they  fall  within  the  list  characteiized 


i62    Neutral  Rights  and  Duties 


as  absolute  contraband,  when  it  is  evident 
that  the  carrying  vessel:  (a)  Is  bound  for  an 
enemy  port;  (b)  is  sailing  for  an  enemy  port 
although  her  papers  indicate  a  neutral  desti- 
nation ;  (c)  is  sailing  for  a  neutral  harbor  with 
papers  suggesting  neutral  consignees,  but  is 
arranging  to  stop  en  route  at  an  intermediate 
port  or  to  meet  armed  enemy  forces : 

2.  If  they  fall  within  the  list  characterized 
as  conditional  contraband  when  the  carrying 
vessel:  (a)  Is  destined  to  an  enemy  port;  (b) 
is  so  clearly  out  of  her  course  to  the  neutral 
port  indicated  in  her  papers  as  to  require  ade- 
quate explanations  which  she  is  unable  to 
give. 

Unfortunately  it  is  too  early  to  comment 
satisfactorily  upon  the  manner  in  which 
belligerent  states  are  interpreting  these  rules 
and  the  attention  which  they  receive.  With 
the  general  law  of  contraband  what  it  is, 
however,  it  does  not  take  a  very  astute  ob- 
server  to   appreciate  that  in  the  hands  of 

tions  at  war  they  may  become  very  oppres- 
sive and  are  so  framed  as  to  serve  belligerent 


Carriage  of  Contraband        163 

interests.  Thus  the  combatant,  who  fails  to 
intimidate  neutrals  from  attempting  to  con- 
duct legitimate  trade  with  the  enemy  by  post- 
ing endless  lists  of  contraband,  can  overhaul 
cargoes  after  they  are  once  afloat  and  avoid 
the  risk  of  letting  prohibited  articles  come 
into  enemy  hands. 

It  is  in  connection  with  the  carriage  of 
contraband  that  we  come  in  touch  with  the 
doctrine  of  the  "continuous  voyage"  as  a 
so-called  extension  of  the  general  law  which 
we  are  considering.  This  is  nothing  more 
than  the  application  of  existing  contraband 
rules  to  cases  that,  because  of  subterfuge  or 
trickery,  are  claimed  to  be  immune.  It  comes 
into  play  when  a  ship  loaded  with  contraband 
puts  into  a  neutral  port  designated  in  her 
papers  with  the  design  of  either  transshipping 
the  cargo  to  an  enemy  destination  ("continu- 
ous transports")  or  of  herself  conveying  it 
thither. 

At  the  time  of  the  Civil  War  the  United 
States  courts,  handling  cases  which  were 
frequent    and    annoying    (see    notably    the 


164    Neutral  Rights  and  Duties 

Bermuda  and  the  Peterhof),  gave  the  first 
clear  expression  to  a  practice  that  was  already 
familiar,  though  contested  by  both  British 
and  Continental  authorities.  So  convincing 
were  their  reasonings  that,  as  has  been  the 
case  with  scientists  and  physicists  who  have 
first  stated  in  terms  that  which  others  vaguely 
appreciated,  they  received  credit  for  ema- 
nating something  new,  and  some  ingenious 
theories  have  recently  been  propounded  to 
endorse  questionable  practices  on  the  pre- 
sumption that  the  United  States  Supreme 
Court  had  furnished  precedents  which  justify 
an  expansion  of  belligerent  activities. 

This  is  far  from  the  fact.  All  that  the 
United  States  Supreme  Court  did  in  the 
period  referred  to  was  to  deny  most  emphat- 
ically that  any  hocus-pocus  like  landing  a 
contraband  cargo  in  Matamoras  or  Nassau 
for  the  sake  of  making  it  immune,  before  de- 
livering it  in  Florida,  would  be  of  any  effect 
in  making  the  commodities  in  question  un- 
objectionable. One  does  not  have  to  be  a 
learned  justice  to  see  the  sanity  of  such  a 


Carriage  of  Contraband        165 

position,  but  one  does  require  rare  scholarly- 
abilities  to  make  a  statement  which  will  cut 
through  the  technical  objections  of  legal 
practitioners.  That  ability  our  courts  sup- 
plied to  such  good  effect  that  not  only  emi- 
nent publicists  upon  the  Continent  accepted 
their  decisions  as  authoritative,  but  British 
ministers  and  jurists  shifted  their  attitude 
and  adopted  a  course  in  line  with  what  is 
now  referred  to  generally  as  an  American 
doctrine. 


CHAPTER  XXI 

UNNEUTRAL    SERVICE 

\  TO  sooner  does  war  break  out  than  the 
^  ^  most  prudent  of  neutrals,  if  it  happens 
to  be  a  commercial  nation  of  importance,  is 
embarrassed  with  successive  notes  from  the 
chancellories  of  the  belligerent  peoples,  pro- 
testing against  unneutral  service.  As  these 
charges,  more  or  less  veiled  in  diplomatic 
language,  frequently  balance  each  other,  they 
need  not  necessarily  be  taken  too  seriously. 

Thus  where  each  nation  is  purchasing  equal 
shipments  of  rapid-firing  guns  it  is  obviously 
absurd  for  either  to  protest  against  a  practice 
which  directly  serves  its  own  purposes. 

Meantime  the  exigencies  and  fortunes  of 
war  are  sure  to  develop  situations  that  not 
unreasonably  arouse  belligerent  suspicion 
that  the  enemy  is  being  unfairly  favored. 

i66 


Unneutral  Service  167 

It  may  be  in  matters  apparently  trivial 
from  the  neutral  standpoint. 

It  may  be  in  matters  so  serious  as  to  make 
the  neutral  appear  to  be  in  a  sort  of  veiled 
alliance  with  the  foe. 

If  there  is  ground  for  such  accusations, 
nothing  remains  for  the  neutral  but  to  retire 
from  an  untenable  position. 

If  the  charges  are  without  warrant,  and 
the  neutral  is  clearly  within  its  rights,  it  may 
not  only  be  put  in  a  most  humiliating  position 
by  submitting  to  belligerent  dictation,  but 
provide  precedents  that  will  retard  the  pro- 
gress of  the  nations. 

With  portentous  developments  depend- 
ing upon  correct  action,  or  the  contrary, 
it  is  therefore  of  inestimable  importance 
that  neutral  governments  should  familiarize 
themselves  with  accepted  principles,  so  that 
they  may  avoid  breaches  of  defined  rules 
unless  there  is  competent  reason  for  so 
doing. 

In  making  such  preparation  two  facts  will 
become  evident: 


1 68    Neutral  Rights  and  Duties 

1.  That  there  has  been  a  distinct  effort 
during  the  last  generation  to  characterize 
the  sort  of  impartiaUty  which  is  expected 
of  neutrals;  and 

2.  That  praiseworthy  as  the  attempt  has 
been  to  mark  the  limitations  of  neutral 
and  belligerent  intercourse,  it  has  not  been 
altogether  successful. 

Twenty-eight  years  ago  Francis  Wharton 
in  his  "Digest  of  International  Law  of  the 
United  States"  (taken  from  administrative 
documents,  the  decisions  of  Federal  Courts 
and  the  opinions  of  attorney-generals),  sum- 
marized restrictions  on  a  neutral  in  the  form 
of  the  following  duties,  viz. : 

1.  The  duty  to  restrain  enlistments  by 
belligerents.  (This  cannot  be  presumed  with 
recent  experiences  in  mind  to  include  the 
prohibition  of  reservists  sailing  as  individuals 
from  neutral  ports  to  rejoin  the  colors.) 

2.  The  duty  to  refrain  from  "the  issuing 
of  armed  expeditions. " 

3.  The  duty  to  restrain  the  fitting  out 
and  sailing  of  armed  cruisers  of  belligerents 


Unneutral  Service  169 

(this  emphatically  includes  the  providing  of 
ships  of  war  by  national  act). 

4.  The  duty  to  prevent  the  passage  of 
belligerent  troops  over  its  soil  (the  latest 
authorities  do  not  permit  this,  even  if  pro- 
vided for  by  treaty  prior  to  the  war). 

5.  The  duty  to  prevent  the  use  of  its 
territory  as  a  base  of  belligerent  operations. 

6.  The  duty  to  prevent  belligerent  naval 
operations  in  territorial  waters  (belligerent 
war  vessels  and  their  prizes  may  pass  through 
neutral  waters  under  the  provisions  of  the 
recent  London  Convention). 

7.  The  duty  to  prevent  the  sale  of  prizes 
in  its  ports,  (by  Articles  21  and  22  of  the 
London  Convention  prizes  may  be  brought 
into  neutral  ports  if  unseaworthy  or  because 
of  special  conditions.) 

8.  The  duty  to  redress  damages  done  to 
belligerents  by  its  connivance  or  negligence. 

In  a  general  way  the  duties  thus  briefly 
afl5rmed  with  the  comments  thereupon  are 
undoubtedly  as  well  fitted  to  serve  United 
States  Cabinet  officials  desiring  information 


I70    Neutral  Rights  and  Duties 

in  regard  to  national  responsibilities  in  time 
of  war,  as  the  ordinary  deportment  book  is 
suited  to  instruct  young  persons  in  polite 
manners. 

So  far  so  good,  especially  since  the  rules 
thus  recapitulated  still  have  force  and  have 
been  recognized  by  the  United  States  at  least 
as  entirely  applicable  to  its  conduct  during 
the  present  war. 

Meantime  Article  3  of  Convention  V  and 
Article  5  of  Convention  XIII  of  the  Hague 
Conference  of  1907,  because  they  have  to 
do  with  matters  undreamed  of  at  the  time 
of  Wharton's  publication,  suffice  to  show 
how  impracticable  it  must  ever  be  to  com- 
prehend in  any  text-book  or  digest  all  the 
particular  acts  or  classes  of  acts  that  a  neu- 
tral must  refrain  from  doing  if  it  wishes  to 
preserve  cordial  relations  with  belligerents. 

These  Articles,  selected  from  the  fifty-eight 
framed  by  the  aforesaid  Convention,  respect- 
ing the  rights  and  duties  of  neutral  Powers 
on  land  and  in  maritime  war,  forbid  the 
erection  by  a  belligerent  "on  the  territory 


Unneutral  Service  171 

of  a  neutral  power  of  a  wireless  telegraph 
station  or  other  apparatus  for  the  purpose  of 
communicating  with  belligerent  forces  on  land 
or  sea, "  and  hold  the  neutral  responsible  for 
permitting  the  occurrence. 

Such  an  instance  illustrates  as  admirably 
as  would  a  dozen,  the  fact  that  a  neutral 
must  be  guided  by  principles  rather  than  by 
the  letter  of  the  law,  and  that  common  sense 
and  a  desire  to  do  equity  will  be  worth  more 
than  any  digest  however  authoritative.  Bear- 
ing this  in  mind  it  is  well  to  note  other 
restraints  upon  neutral  activity  than  those 
marked  by  Wharton,  but  which  have  re- 
ceived certain  if  not  final  recognition.  Among 
these  are: 

1 .  The  duty  to  prevent  a  belligerent  from 
setting  up  a  prize  court  on  neutral  soil. 

2.  The  duty  to  prevent  a  belligerent  from 
using  neutral  territory  as  a  base  for  manufac- 
turing arms  or  supplies  (reference  is  made  else- 
where to  the  proper  resentment  a  neutral  may 
show  when  belligerent  plotting  interferes  with 
the  industrial  activities  of  private  citizens). 


172    Neutral  Rights  and  Duties 

3.  The  duty  to  prevent  belligerent  war- 
ships from  making  neutral  ports  a  base  for 
war  activities.  The  rule  is  that  not  more 
than  three  at  a  time  should  be  admitted 
to  a  given  harbor  and  these  can  only  remain 
for  repairs,  or  to  coal  or  provision — a  sharp 
limit  being  placed  on  the  time  of  their  contin- 
uance and  care  being  taken  that  they  do  not 
receive  arms  or  military  supplies. 

4.  The  duty  to  intern  belligerent  ships 
that  fail  to  obey  orders  to  leave  port. 

5.  The  duty  to  refuse  a  belligerent  the 
privilege  of  marching  prisoners  through 
neutral  territory. 

6.  The  duty  to  prevent  its  war  or  public 
vessels  to  directly  aid  a  belligerent  by  carry- 
ing armed  forces,  stores,  dispatches,  or  war 
material. 

7.  The  duty  to  prevent  its  official  agen- 
cies of  whatever  character  from  giving  a 
belligerent  news  which  may  be  used  to  the 
disadvantage  of  its  opponent.. 

8.  The  duty  to  exact  from  belligerents 
such    compensation    as    the    occasion    may 


Unneutral  Service  173 

demand  for  unpreventable  acts  which  both 
violate  its  neutrahty  and  injure  the  other 
belligerent. 

9.  The  duty  to  secure  the  release  of 
prizes  taken  or  prisoners  captured  on  its 
territory. 

10.  And  generally,  in  accordance  with 
Articles  8  and  25  of  Convention  XIII  of  the 
second  Hague  Conference,  the  duty  of  em- 
ploying the  means  at  its  disposal  to  prevent 
acts  favoring  or  damaging  a  belligerent. 

Such  are  certain  of  the  obligations  which 
are  automatically  imposed  by  war  upon  a 
state  which  announces  its  intention  to  remain 
neutral. 

That  they  are  sufficiently  burdensome  is 
apparent.  Notwithstanding  this  there  are 
those  that  would  add  to  their  number  by 
making  a  neutral  nation  responsible  for  the 
acts  of  its  subjects.  This  is  preposterous. 
Even  a  small  state  cannot  undertake  to  keep 
the  surveillance  of  its  people  which  any  rule 
framed  upon  a  like  conception  of  its  responsi- 
bility would  require. 


174    Neutral  Rights  and  Duties 

Belligerents  must,  therefore,  rest  con- 
tent with  the  fact  that  they  have  long  been 
permitted  to  enforce  their  own  police  meas- 
ures against  such  neutral  individuals  as 
transgress  their  reasonable  laws.  For  the 
temper  of  the  world  is  changing  with  the 
elimination  of  time  and  space,  and  there  is 
little  humor  for  further  concessions. 

It  was  well  enough  for  wrangling  states, 
that  were  so  disposed,  to  arm  and  pitch  into 
each  other  during  those  golden  times  when 
three-quarters  of  the  world  were  oblivious  of 
what  was  happening  in  the  other  quarter. 
Belligerents  could  then  dictate  to  peaceful 
neighbors  without  fear  of  armed  protest. 
That  time  is  long  past,  however,  and  war, 
always  as  much  of  a  nuisance  to  those  on  its 
outskirts  as  it  has  been  a  tragedy  to  the 
peoples  directly  concerned,  is  bound  to  weigh 
with  increasing  heaviness  upon  neutrals.  It 
is  better  that  these  latter,  instead  of  giving 
further  bonds  to  the  quarrelsome,  should 
either  lay  aside  their  neutrality  when  right- 
eousness  and   justice   are   shocked   by   the 


Unneutral  Service  175 

unconscionable  aggressions  of  a  militant  state, 
or  if  there  is  equal  guilt,  refuse  to  give  the 
combatants  the  consideration  now  vouch- 
safed. 


CHAPTER  XXII 

CARDINAL    RIGHTS 

DEFERENCE  has  been  made  to  the 
^  ^  criminations  that  belligerents  file 
against  neutral  states  with  the  advent  of  war. 
What  about  counter-charges  from  neutrals! 
Unfortunately  for  a  reason  already  given — 
viz., — the  habit  of  considering  belligerency  not 
only  most  respectable,  but  of  such  dominat- 
ing importance  as  to  be  controlling — little  has 
been  written  or  said  about  the  sort  of  comity 
and  fair  treatment  that  neutrals  may  properly 
demand  from  belligerents. 

Surely  the  time  has  come  to  turn  things 
about  and  to  insist  that  the  engagements  of 
states  to  each  other,  whether  express  or 
implied,  be  carefully  regarded  whether  war 
distracts  the  attention   of   a  party   to   the 

contract,  or  not. 

176 


Cardinal  Rights  177 

This  means  that  the  neutral  must  be  as 
insistent  as  vigorous  in  defense  of  its  rights, 
and  as  alert  as  is  the  belligerent;  instead  of 
standing  by,  paralyzed  by  the  mere  sugges- 
tion of  war — as  if  such  a  status  like  some 
necromancer's  rod  were  capable  of  turning 
everything  topsy-turvy. 

Such  action  is  nothing  more  than  a  demand 
for  justice.  Unassailable  because  of  the  right- 
eousness of  its  attitude,  it  is  probable  that  a 
powerful  neutral  state  can  do  more  to  bring 
about  a  proper  adjustment  of  human  affairs 
by  firmness  on  a  single  occasion,  than  by 
repeatedly  yielding  its  rights.  The  one 
course  makes  toward  peace — the  other  and 
weaker  way  gives  aid  and  comfort  to  the 
war-lords  and  encourages  them  to  stir  up 
further  broils  and  aggressions. 

That  such  insistence  upon  the  kind  of 
treatment  which  is  demanded  by  self-respect 
need  lead  to  hostilities,  does  not  follow.  If 
nations  are  like  individuals,  and  certainly 
there  are  many  points  in  common,  it  is  less 
dangerous  to  require  ordinary  consideration 


178    Neutral  Rights  and  Duties 

from  others  than  to  submit  to  successive 
indignities  until  the  aggressor  is  led  to  do 
something  which  will  cause  the  most  timid  to 
turn. 

Meantime  a  nation  that  values  its  own 
rights  will  avoid  trouble  by  a  natural  regard 
for  the  rights  of  others.  It  will  also  be  a  wise 
enough  and  keen  enough  observer  to  avoid 
asking  that  which  is  impracticable,  as  will 
be  the  case  when  a  country  in  which  neutral 
property  may  be  located  is  held  by  an  in- 
vader, or  the  approach  of  a  hostile  army 
has  paralyzed  the  operations  of  the  civil 
government. 

What  are  these  rights  which  every  neutral 
may  properly  assert,  but  which  they  have 
guarded  in  such  a  slovenly  fashion  heretofore : 

1.  The  right  to  the  integrity  of  its  own 
territory,  and  to  prevent  its  misuse  by  for- 
eign powers  for  any  such  operations  or  pur- 
poses, military  or  otherwise,  as  may  embarrass 
a  nation  with  which  the  neutral  state  is  at 
peace; 

2.  The  right  to  the  integrity  of  its  bays 


Cardinal  Rights  179 

and  harbors  together  with  the  waters,  which 
it  dominates,  and  which  it  is  believed  will 
shortly  be  conceded  to  cover  a  space  along 
its  coast  far  wider  than  the  marine  league 
honored  in  the  United  States  since  the  days 
of  Washington. 

3.  The  right  to  have  its  merchantmen 
and  public  ships  pass  unintercepted  over  the 
high  seas,  provided  they  commit  no  such 
breach  of  enemy  requirements  in  the  matter 
of  blockade  and  contraband  as  the  neutral 
may  have  conceded  that  belligerents  are  en- 
titled to  impose;  this  unequivocally  includes 
the  right  to  continue  its  trade  with  other 
neutrals ; 

4.  The  right  to  forbid  belligerent  inter- 
ference with  neutral  goods,  which  are  not 
contraband,  on  enemy  ships,  or  of  enemy 
goods  on  neutral  ships; 

5.  The  right  to  require  from  the  bellig- 
erent courteous  treatment  of  neutral  officials 
and  citizens,  and  such  protection  of  neutral 
property  as  the  non-combatant  may,  all 
other  things  being  equal,  expect  in  times  of 


i8o    Neutral  Rights  and  Duties 

peace.  It  is  of  course  recognized  that  this  is 
subject  to  exigencies  of  war  that  may  make 
it  practically  impossible  for  the  belligerent 
to  afford  such  police  and  other  protection  as  it 
would  gladly  supply  under  different  condi- 
tions; also  that  the  rule  is  subject  to  the 
understanding  that  certain  neutral  property 
belonging  to  neutral  citizens  resident  in 
enemy  territory,  acquires  enemy  character, 
notwithstanding  the  fact  that  it  is  still  to  a 
degree  under  the  protection  of  a  neutral 
government; 

6.  The  proper  recognition  of  treaties, 
conventions,  and  agreements  between  the 
two  nations; 

''7.  The  right  to  maintain  intercourse  with 
a  belligerent  government  or  with  belligerent 
governments  without  let  or  interference, 
provided  the  neutral  perform  no  unneutral 
act; 

8.  The  right  to  insist  that  belligerents 
shall  avoid  doing  anything  in  neutral  territory 
designed  to  cause  embarrassment  if  not  actual 
injury  to  a  friendly  people.     This  matter 


Cardinal  Rights  i8i 

will  be  treated  separately  because  of  its 
importance,  and  because  the  experiences 
of  the  United  States  since  the  fall  of  19 14 
appear  to  justify  a  fuller  treatment  than  it 
has  heretofore  received; 

9.  The  right  to  protect  its  citizens  in  their 
intercourse  with  belligerents,  provided  the 
former  do  not  contravene  such  belligerent 
requirements  as  are  sanctioned  by  neutral 
acquiescence. 

That  there  are  other  rights  than  those  thus 
classified  will  readily  occur  to  every  reader, 
although  they  have  as  yet  had  scant  recogni- 
tion by  international  lawyers.  Prominent 
among  these,  and  of  particular  interest  to  the 
United  States,  should  be  those  which  arise  in 
connection  with  eleemosynary  enterprises  in 
which  citizens  of  neutral  countries  have 
engaged  for  the  benefit  of  belligerent  subjects, 
and  under  such  official  approval  as  has 
warranted  the  expenditure  of  enormous  sums 
of  money  and  the  sacrificing  service  of  valu- 
able lives. 

It   is   one  thing  for   a   group   of   citizens, 


1 82    Neutral  Rights  and  Duties 


whether  incorporated  or  otherwise,  belonging 
to  a  given  country,  to  locate  a  business  pro- 
position in  a  foreign  land  and  under  the 
protection  of  a  foreign  flag.  It  should  be 
quite  another  thing  for  the  same  group  to 
maintain  institutions  which  are  educational 
in  character  among  the  people  of  a  friendly 
state,  provided  the  project  meets  with  the 
endorsement,  if  not  the  encouragement, 
of  the  ruling  Power.  In  the  former  case  a  tax 
is  rightly  exacted,  and  the  alien  association 
must  expect  to  share  with  natives  the  dis- 
comforts to  which  they  are  exposed  because  it 
has  shared  their  advantages.  In  the  other, 
the  enterprise  is  unselfish;  is  maintained  for 
the  benefit  of  the  nation  within  whose  borders 
its  activities  occur,  and  frequently  is  bul- 
warked through  official  action  with  particular 
privileges.  Nothing  less  than  distinctive 
motives  differentiate  the  two  lines  of  effort, 
and  one  does  not  have  to  be  a  subtle  thinker 
to  discover  reasons  why  the  experiment 
which  is  humanitarian  and  helpful,  should 
take  on  a  more  favorable  aspect  when  sub- 


Cardinal  Rights  183 

mitted  to  the  war  test  (not  accorded  it  to 
the  present  time)  than  the  business  venture 
deserves.  However  this  may  be,  there  is 
certainly  ground  for  governments  like  the 
United  States  and  other  neutral  Powers  to 
make  strong  representations  when  the  flame 
of  war  threatens  to  scorch  and  jeopardize 
institutions  located  abroad,  which  their  sub- 
jects have  financed,  and  which  are  designed 
to  promote  international  good-will. 

Such  rights  as  these,  however  sentimental 
they  may  appear  to  the  cynic,  demand 
attention  both  from  the  standpoint  of  the 
interested  nation  and  again  from  that  of  the 
society  of  civilized  states  whose  ultimate 
welfare  is  dependent  upon  a  growing  comity 
and  the  reign  of  law.  The  reason  is  apparent, 
for  if  they,  as  well  as  the  classified  rights 
above  referred  to,  be  treated  with  indifference 
by  the  ministries  mostly  concerned,  it  will 
naturally  eventuate  that  the  extraordinary 
developments  which  are  bringing  the  nations 
into  a  closer  intercourse  will  produce  disorder 
and  chaos  rather  than  amity  and  progress. 


1 84    Neutral  Rights  and  Duties 

The  suggestion  comes  with  a  glimpse  into 
the  future!  Meantime  the  field  thus  cur- 
sorily touched  should  prove  a  fascinating  one 
to  the  international  lawyer  and  publicist,  for 
many  abuses  that  are  interfering  with  inter- 
state confidence  await  correction. 


CHAPTER  XXIII 

EXPRESSION    OF    OPINION 

T  TNDER   date  of  August   19,    1914,   the 

^-^  President  of  the  United  States  through 
the  medium  of  the  Senate  appealed  to  the 
citizens  of  the  Republic  "to  assist  in  main- 
taining a  state  of  neutrality  during  the 
present  European  War." 

Drafted  with  the  skill  that  is  noticeable 
in  every  message  from  Mr,  Wilson's  pen,  and 
reflecting  the  high  and  honorable  purposes 
of  the  Executive,  the  document  properly 
caused  remark  at  the  time  and  may  still 
be  advantageously  used  to  introduce  a  dis- 
cussion of  the  limitation  of  speech  in  neutral 
countries. 

Is  it  incumbent  upon  the  people  of  a  country 
that  has  proclaimed  its  neutrality  to  refrain 
from  that  sort  of  comment  upon  belligerent 
185 


1 86    Neutral  Rights  and  Duties 

policies  or  action  which  proclaims  partisan- 
ship? It  is  inconceivable  that  any  other 
answer  than  one  that  means  No!  can  be 
framed,  unless  such  expression  be  authori- 
tatively and  lawfully  enjoined  by  the  govern- 
ment. Nor  does  it  follow  that  any  exception 
can  be  made  because  the  Powers  at  war  or 
either  of  them  are  irritated  thereby.  The 
latter  are  free,  if  it  suit  their  purpose,  to  take 
notice  of  what  is  happening  in  a  sphere 
which  is  absolutely  outside  of  their  control, 
and  may  even  go  so  far  as  to  threaten  or  force 
hostilities.  The  neutral  state  owes  them  no 
such  duty  as  may  entail  a  gag  law,  and  there 
is  no  privity  between  them  and  the  citizens 
of  another  sovereignty.  If  they  take  action, 
therefore,  it  must  be  on  some  plea  analogous 
to  necessity,  as  viewed  from  their  standpoint. 
It  cannot  be  a  matter  of  right. 

Having  disposed  of  the  first  question  in  a 
manner  by  no  means  uncertain,  the  inquirer 
finds  himself  confronted  by  a  second,  which  to 
a  fair-minded  person  is  no  less  impressive. 

Is  it  desirable  Jar  the  people  of  a  country 


Expression  of  Opinion        187 

which  has  proclaimed  its  neutrality  to  refrain 
from  an  unfettered  discussion  of  all  issues 
which  are  being  tried  out  between  the  belligerents 
as  well  as  the  motives,  standards,  and  policies  of 
the  latter  ?  Yes !  If  there  is  bias,  blind  pre- 
judice, and  unworthy  motive  behind  the 
spoken  speech,  or  the  sort  of  partisanship 
that  may  be  readily  challenged  because  it 
prefers  some  other  cause  to  that  of  country. 
No!  and  eternally  No!  if  the  land  of  one's 
nativity  is  directly  concerned  and  its  future 
may  be  affected  thereby.  Such  conditions 
should  and  do  present  moral  elements  which 
may  even  be  conceived  of  as  justifying  a  good 
citizen  in  challenging  the  mistaken  authority 
of  his  country,  if  the  latter  attempts  to 
bridle  the  expression  of  opinion.  They  cer- 
tainly therefore  permit  the  utmost  frankness 
of  speech  in  cases  where  there  is  no  restric- 
tion of  municipal  law,  and  one  finds  it  difficult 
to  think  of  any  enlightened  people,  whether 
under  the  sway  of  a  sceptre  or  self -guided, 
which  might  not  otherwise  find  its  dearest 
interests  imperiled. 


i88    Neutral  Rights  and  Duties 

This  is  particularly  true  of  a  democracy! 

From  the  time  when  Montesquieu  in  dis- 
tinguishing his  three  forms  of  government 
differentiated  the  republican  from  the  mon- 
archial  and  despotic,  by  pointing  out  that  the 
whole  body  of  the  people  therein  took  part  in 
the  government  and  each  individual  assumed 
the  responsibility  thereof  —  the  thinking 
world  has  taken  it  for  granted  that  this  sort 
of  body  politic  must  inform  itself  and  these 
citizen  units  ought  to  inform  themselves 
regarding  both  exterior  and  interior  affairs 
so  that  the  interests  of  the  people  may  be 
guarded. 

With  these  facts  in  mind  one  finds  it  diffi- 
cult to  understand  those  phrases  in  the 
dignified  appeal  of  President  Wilson  which 
suggest  withholding  of  discussion  and  judg- 
ment, unless  they  may  be  explained: 

I.  By  the  failure  of  a  layman,  whose 
patriotism  and  wisdom  are  beyond  question, 
to  appreciate  the  difference  that  exists  be- 
tween the  official  action  of  a  state  and  the 
informal  and  private  utterances  of  its  people. 


Expression  of  Opinion        189 

2.  By  the  conviction  that  his  warning 
must  be  so  framed  as  to  prevent  actual 
collision  between  the  millions  of  European- 
born  citizens  of  the  United  States  whose 
affiliations  separate  them  into  various  camps. 

That  the  first  explanation  would  not  be 
unnatural  will  occur  to  those  who  are  familiar 
with  the  confused  manner  in  which  interna- 
tional lawyers  of  repute  have  handled  the 
question  of  national  partisanship,  and  who 
recall  that  the  Chief  Magistrate  was  called 
to  meet  a  great  crisis  with  brief  time  for 
meditation. 

As  to  the  second — it  must  be  noted  that 
one-third  of  the  appeal  calls  attention  to  the 
diverse  character  of  American  citizenship  and 
bears  witness  to  the  fact  that  this  aspect  of 
our  national  status  had  made  its  impression 
on  the  President's  mind. 

Certain  of  these  sentences  are  as  follows: 
**I  venture  to  speak  a  solemn  word  of  warning 
to  you  against  that  deepest,  most  subtle,  most 
essential  breach  of  neutrality  which  may 
spring  out  of  partisanship,  out  of  passion- 


190    Neutral  Rights  and  Duties 

ately  taking  sides. "  We  must  be  "a  nation 
that  neither  sits  in  judgment  upon  others," 
etc. 

It  is  not  improbable  that  they  were  at 
first  and  are  still  misinterpreted,  and  that 
the  President  meant  nothing  more  than  to 
push  a  little  further  the  thought  expressed 
when  he  says — "we  must  be  impartial  in 
thought  as  well  as  in  action" — which  is 
certainly  rational  and  beyond  criticism,  in 
that  it  counsels  judicial  fairness  in  the  use 
of  the  thinking  processes. 

If  so,  there  exists  no  ground  for  objection. 

If,  to  the  contrary,  there  was  an  intention 
to  convey  the  idea  that  citizens  individually 
or  in  conference  must  not  under  any  circum- 
stances stir  public  opinion  to  such  a  degree 
as  will  make  war  possible  and  probable — there 
is  certainly  ground  for  challenging  the  counsel 
thus  given,  because  of  the  serious  consequences 
that  might  follow  silent  acquiescence  in  the 
misdeeds  of  a  foreign  Power. 

No  one  knows,  and  few  dare  to  hazard  an 
opinion  as  to  the  close  of  the  war  which 


Expression  of  Opinion        191 

furnished  the  occasion  of  this  particular 
message.  Meanwhile  every  intelligent  per- 
son appreciates  the  fact  that  whenever 
actual  hostilities  cease,  or  whatever  cause  is 
dominant  at  the  end — every  State  of  conse- 
quence is  apt  to  have  its  political  or  com- 
mercial policies  distinctly  shifted  in  the 
rearrangement  that  will  follow.  How  can 
the  appreciation  of  such  pregnant  conse- 
quences exert  other  influence  than  force 
upon  the  loyal  citizen  of  every  neutral  coun- 
try the  necessity  of  watching  the  course 
of  events  as  it  unrolls  itself,  and  interchang- 
ing opinions  with  others  thereupon. 

It  may  be  that  the  outlook  is  portentous, 
and  that  now,  not  to-morrow,  is  the  time 
for  action.  In  that  case,  belligerency,  not 
neutrality,  will  be  in  order. 

It  is  because  of  this  necessary  attitude  of  a 
brave  and  vigilant  people  that  any  advice 
which  looks  toward  the  preservation  of 
neutrality  must  be  carefully  scrutinized, 
bearing  in  mind  that  the  safety  and  prosperity 
of  their  native  land  is  the  object,  not  neutral- 


192    Neutral  Rights  and  Duties 

ity  because  of  any  virtue  in  itself.  Neutrality 
is  a  means  to  an  end — an  end  which  may  mean 
peace  and  may  mean  warfare,  but  does  not 
necessarily  mean  either  in  the  largest  sense 
of  the  word.  When  it  becomes  worthless  as  a 
means,  it  cannot  too  quickly  be  thrown  aside. 

In  making  use  of  the  President's  appeal  for 
the  purpose  of  considering  in  a  general  way 
the  right  of  the  citizen  of  any  neutral  country 
to  fully  express  opinion  regarding  belligerent 
activities,  whether  or  not  the  spoken  or  writ- 
ten word  indicates  something  of  bias — we  are 
led  to  deal  directly  with  the  present  attitude 
of  the  European  nations  toward  the  people  of 
the  United  States. 

That  this  ranges  from  criticism  where 
ministerial  action  is  frankly  condemned,  to 
direct  hostility  engendered  because  of  a  con- 
viction as  to  the  trend  of  national  sym- 
pathies, is  obvious  and  natural.  The  pity  is 
that  in  either  case  there  should  be  a  dis- 
position to  regard  the  American  people  as 
unneutral,  notwithstanding  their  approval  of 
an  official  policy  which  is  beyond  suspicion. 


Expression  of  Opinion        193 

In  the  first  instance  it  must  be  remembered 
that  few  cabinets  exist  in  these  days  without 
having  to  endure  the  scorching  faultfindings 
of  the  people  they  represent.  It  is  therefore 
perfectly  natural  that  groups  of  individuals 
who  suffer  directly  from  the  policies  inaugu- 
rated by  a  Power  to  which  they  owe  no  fealty, 
will  give  vent  to  cynicism,  if  not  to  justifiable 
anger.  All  this  is  natural  and  without 
significance. 

As  to  the  trend  of  national  sympathy  in  a 
neutral  country  that  is  unexpressed  officially 
— it  can  no  more  be  prevented  than  the  suc- 
cession of  the  days!  Thus  if  a  belligerent  is 
fighting  for  that  which  a  neutral  people 
believe  to  endanger  their  own  interests, 
the  latter  are  bound  to  comment.  This  was 
to  be  expected  and  is  expected.  Meantime 
the  belligerent  can  congratulate  itself  if  from 
any  motive  it  is  receiving  the  same  courtesies 
that  is  offered  its  enemy. 

What  is  thus  said  in  general  has  a  particular 

illustration    in   the    attitude   of    Americans 

toward  the  contending  nations  of  Europe. 
13 


194    Neutral  Rights  and  Duties 

Earnestly  devoted  to  the  free  institutions, 
which  are  a  passion  with  them  as  they  were 
with  the  Fathers  of  the  Republic,  they  can 
have  no  fondness  for  autocracy  itself,  and 
can  only  dread  its  achievements.  To  suggest 
otherwise  would  be  a  hypocrisy  which  would 
deceive  no  one,  and  could  add  nothing  to  a 
sovereignty's  fair  attempt  to  perform  its 
duties  impartially. 

Meantime  a  generous  enthusiasm  for  their 
own  ideals  does  not  preclude  their  enacting 
the  role  of  a  neutral  Power  and  even  leaning 
backward  in  their  attempt  to  rigorously 
observe  the  requirements  of  the  part  they 
choose  to  play. 

Let  us  remember  that  neutrality  is  one 
thing,  but  that  national  sympathy  is  another, 
and  that  no  good  can  come  from  confusing 
the  two. 


CHAPTER  XXIV 

BELLIGERENT    AGENTS    IN    NEUTRAL    STATES 

nPHE  extraordinary  activity  of  belligerent 
-^  agents  in  the  United  States  during  these 
days  of  stress  and  strain  introduces  a  new 
factor  into  the  field  of  international  law. 
One  of  the  results  of  a  slovenly  immigration 
policy,  it  must  none  the  less  be  regarded 
as  a  natural  sequence  of  that  twentieth-cent- 
ury restlessness  which  is  driving  people  over 
their  own  boundary  lines  and  into  other  do- 
mains. For  the  present  North  America  is 
reaping  the  unhappy  results  of  her  acquisi- 
tiveness. To-morrow  it  may  be  the  Argentine 
or  Chili,  or  yet  again  some  new  Asiatic  state 
as  yet  unshaped.  The  inpouring  of  a  host 
of  immigrants  and  the  joining  of  hostilities  by 
the  countries  from  which  such  immigrants 
come,  are  the  only  requirements.  This 
195 


196    Neutral  Rights  and  Duties 

makes  it  particularly  necessary  to  think  and 
act  wisely  with  the  first  stirring  of  the  factors 
which  are  startling  the  United  States. 

Given  a  group  of  foreigners  owing  alle- 
giance to  a  nation  that  is  at  war,  but  them- 
selves domiciled  in  a  neutral  country  or 
living  therein  as  official  representatives  of 
their  government,  and  which  concocts 
schemes  for  the  destruction  of  neutral  pos- 
sessions, whether  the  same  be  manufacturing 
plants,  material  in  the  course  of  construction, 
or  finished  product — does  the  government, 
which  is  itself,  or  whose  people  are  impover- 
ished thereby,  owe  any  duty  to  the  profiting 
belligerent  or  its  subjects,  whether  the  same 
be  acting  under  its  orders  or  upon  their  own 
initiative  ? 

It  is  unthinkable  that  any  obligation 
should  exist  in  the  matter  of  private  per- 
sons, inasmuch  as  these  are  as  responsible 
to  municipal  regulations  as  are  citizens. 
As  for  consuls,  ambassadors,  and  the  like, 
while  their  precious  persons  may  require  cer- 
tain consideration,  they  are  supposed  to  stand 


Hostile  Agents  in  Neutral  States  197 

for  the  Power  they  represent,  and  in  offend- 
ing, offer  a  direct  challenge  from  those  whose 
servants  they  are.  If  any  duty  exists  in  this 
case,  it  would  seem  to  be  a  colorless  one  of 
using  polite  phrases  and  manners  while 
demanding  satisfaction;  or  declaring  war  in 
terms  sufficiently  correct. 

With  duties  thus  disposed  of  the  matter 
of  rights  may  be  considered  without  the 
embarrassment  which  comes  when  there  is 
the  uncertainty  of  a  possible  obligation. 
What  rights  has  a  neutral  government  in  the 
premises  ? 

I.  The  right  to  insist  that  the  belligerent 
with  which  it  is  at  peace,  should  not  only 
abstain  from  interference  with  a  friendly 
Power's  internal  concerns,  but  should — 

(a)  rigorously  handle  diplomatic  repre- 
sentatives who  volunteer  the  sort  of  destruc- 
tive service  which  may  at  any  moment  offer 
a  casus  belli; 

(b)  use  its  good  offices  in  discouraging  its 
subjects  resident  in  neutral  territory  from  the 
performance  of  such  reprehensible  practices. 


198    Neutral  Rights  and  Duties 

2.  The  right  to  handle  alien  malefactors 
already  amenable  to  her  municipal  law,  with 
special  severity,  as  open  to  a  charge  which 
criminals,  who  are  citizens  of  the  neutral 
state,  are  not  suspected  of,  viz, :  levying  war 
upon  the  aggrieved  sovereignty,  and  there- 
fore guilty  of  a  felony  which  is  akin  to  piracy. 

In  this  connection  the  report  that  the 
Attorney- General  of  the  United  States,  in- 
stead of  acting  in  the  face  of  repeated  out- 
rages of  belligerent  origin,  is  content  to  search 
for  proper  legal  authorization  along  the  line 
of  the  Sherman  Act  which  will  justify  him 
in  dealing  effectively  with  an  extraordinary 
situation,  should  have  been  received  cum 
grano  sails,  and  has  been  already  discredited. 

Meantime  it  will  not  be  sufficient  for  this 
nation  or  any  nation  to  attempt  to  deal  with 
this  product  of  loose  immigration  laws  by  the 
sort  of  regulative  enactments  which  national 
legislatures  pass  to  prevent  the  growth  of 
domestic  abuses. 

For  this  outgrowth  of  twentieth-century 
conditions  is  treason  or  war — treason  when 


Hostile  Agents  in  Neutral  States  199 

exploited  by  citizens  of  a  double  allegiance, 
and  war  of  a  most  terrible  sort  when  demon- 
strated by  those  members  of  the  alien  popu- 
lation of  a  country  who  take  upon  themselves 
destructive  measures. 

Up  to  the  present  time  the  United  States 
appears  to  have  been  fairly  complacent  re- 
garding its  rights  in  this  matter.  It  can- 
not long  continue  so,  because,  ingenuous  as 
are  its  public  men  in  their  belief  that  some 
favoring  divinity  will  shield  it  from  the 
debacles  and  tragedies  that  affect  other 
states,  belligerents  are  bound  to  appreciate 
the  fact  that  a  blow  at  its  industries  is  the 
easiest  approach  to  the  vitals  of  the  enemy. 

With  an  increase  in  their  activities  there 
should  come  an  arousing  from  slumber,  and 
self-queries  as  to  whether  the  nation,  which 
has  formally  proclaimed  itself  a  neutral,  is  not 
really  getting  the  sort  of  blows  which  bellig- 
erents interchange  without  the  privileges  of 
belligerency.  Then  perhaps  the  nation  will 
stir,  and  do  that  which  will  prove  a  useful 
precedent  for  all  sovereignties. 


200   Neutral  Rights  and  Duties 

If  it  does  not,  and  other  people  are  satisfied 
to  follow  its  spineless  policy,  the  civilized 
world  will  accelerate  its  pace  toward  a  dark 
age,  losing  all  that  has  been  so  hardly  won 
by  the  same  supineness  which  Demosthenes 
found  in  the  enervated  and  decadent  Athen- 
ians. 

To  man  and  nation  self-respect  is  essential 
for  existence,  progress,  achievement!  As  a 
consequence  no  principle  of  international 
law  has  been  more  emphatically  affirmed  as 
basic  and  essential.  Without  it  there  could 
be  no  sovereignty — no  national  integrity — 
no  insistence  upon  that  sort  of  obedience  to 
the  law  of  the  community  which  originally 
produced  coherence,  and  dignifies  the  man- 
dates of  states. 

Every  force  follows  the  line  of  least  resist- 
ance. It  is  much  easier  for  a  belligerent  to 
work  through  thousands  of  emissaries  in 
countries  whose  factories  are  turning  out  the 
munitions  and  war  supplies  which  arm,  feed, 
and  clothe  their  enemy,  than  to  battle  with 
the  same   enemy  after   it   is   made  terrible 


Hostile  Agents  in  Neutral  States  201 

by  the  purchase  of  these  commodities. 
Therefore  the  American  people  in  perfect  pro- 
portion to  their  commercial  and  industrial 
activity  can  assume  that  the  war  now  waging 
in  Europe  will  be  transferred  within  their  own 
borders  if  they  permit  matters  to  drift,  and 
this  too  while  the  offending  Power  or  Powers 
are  elaborating  diplomatic  notes  which  pro- 
test friendship  and  amity. 

For  a  country  situated  as  is  the  United 
States  (and  the  latter  is  chosen  as  an  example 
for  all  neutrals  whose  industries  are  similar), 
there  are  two  courses  either  of  which  it  may 
follow  as  a  result  of  such  internal  attacks  as 
are  above  referred  to,  if  it  does  not  care  to 
declare  public  war,  a  step  which  might  easily 
be  justified  if  foreign  governments  were  shown 
to  be  responsible  for  the  in j  uries  suffered .  One 
— to  inanely  fuss  and  fume  over  the  periodi- 
cal destruction  of  factory  and  storehouse 
with  their  contents — the  other — to  visit  such 
terrible  punishment  upon  the  individuals  who 
have  dared  to  make  private  war  upon  it  as 
will  lead  them  to  think  twice  before  placing 


202    Neutral  Rights  and  Duties 


fe' 


themselves  outside  the  pale  of  organized 
society. 

If  the  two  paths  thus  suggested  lead  far 
apart,  it  only  emphasizes  the  necessity  of  a 
correct  choice.  It  is  therefore  to  be  greatly 
regretted  that  many  pacificists  mistake  in- 
action and  temporizing  as  more  desirable 
than  a  swift  calling  to  account,  and  thus  im- 
peril the  neutrality  of  their  country  by  the 
same  counsels  with  which  they  make  ultimate 
and  continuing  peace  impracticable. 

The  surest  means  toward  the  achievement 
of  world  peace  and  national  peace  is  the 
maintenance  of  neutrality  and  the  populariz- 
ing among  other  peoples  of  those  principles 
which  neutrals  are  bound  to  see  recognized 
as  a  matter  of  self-interest.  But  if  there  is 
any  one  thing  which  statesmen  and  philo- 
sophers are  agreed  upon  it  is  the  quite  self- 
evident  proposition  that  neutrality  must  be 
effective,  assertive,  and  ready  to  fight  if  it 
is  to  have  any  recognition  by  belligerents.  It 
is  therefore  incumbent  upon  advocates  of 
peace  to  heartily  indorse  a  vigorous  neutral 


Hostile  Agents  in  Neutral  States  203 

policy,  if  they  wish  to  see  the  working  out  of 
ends  they  have  at  heart. 

Let  us  suppose  that  the  sometime  upholders 
of  a  policy  of  non-resistance  see  this,  and  with- 
draw opposition  to  the  sort  of  rough  handling 
of  malefactors  that  a  strong  government  will 
naturally  adopt,  or  that  the  majority  of  the 
people  are  determined  in  spite  of  the  cavil- 
ings  of  a  minority  to  stop  the  destruction  of 
their  industrial  machinery  and  its  products. 
What  can  they  do? 

1.  Publish  and  distribute  broadcast  so 
that  he  who  runs  may  read  such  statutes 
and  adjudications  as  form  part  of  the  body  of 
state  law  and  justify  legal  action  by  the 
Department  of  Justice,  and  such  Executive 
proclamations  and  manifestoes  as  have  been 
called  forth  by  the  default  of  both  citizens 
and  resident  aliens; 

2.  Proceed  against  malefactors  who  owe 
allegiance  to  the  Government  with  or  without 
the  warning  above  suggested,  and  with  abso- 
lute disregard  for  the  fact  that  such  persons 
were  born  under  a  different  flag,  and  may 


204    Neutral  Rights  and  Duties 

have  higher,  if  mistaken,  motives,  than  those 
of  the  ordinary  criminal  whose  regard  for 
himself  generally  outweighs  his  loyalty  to  any 
sovereignty. 

If  the  act  committed  is  plainly  treason  or 
misprision  of  treason,  every  neutral  nation 
will  be  found  to  be  provided  with  ample 
machinery  to  handle  the  situation.  If  not, 
the  developments  of  the  present  European 
war,  following  hard  upon  the  re-distribution 
of  the  peoples  of  the  earth  by  immigration, 
will  have  the  effect  of  stimulating  such 
self-preservative  legislation  as  has  been  neg- 
lected heretofore,  and  make  good  any  existing 
deficiency. 

If  the  act  be  one  that  lacks  the  stronger 
features  of  the  least  excusable  of  all  crimes, 
but  is  still  deserving  of  punishment,  no 
government,  if  not  already  armed  with  suit- 
able authority,  can  well  defer  providing  such 
statutory  enactment  as  will  meet  the  condi- 
tions. This  was  well  understood  by  the 
Congress  of  the  United  States  in  1799  when, 
with  less  occasion  for  action,  it  passed  the 


Hostile  Agents  in  Neutral  States  205 

following  law  adapted  to  the  requirements  of 
that  hour: 

"Sect.  5335 — Every  citizen  of  the  United 
States,"  etc.,  "who  without  the  permission 
or  authority  of  the  Government  directly  or 
indirectly  commences  or  carries  on  any  verbal 
or  written  correspondence  or  intercourse  with 
any  foreign  government  or  any  officer  or 
agent  thereof,"  etc.,  "in  relation  to  any 
disputes  or  controversies  with  the  United 
States,  or  to  defeat  the  measures  of  the  Govern- 
ment of  the  United  States  and  every  person 
being  a  citizen  of  or  resident  within  the 
United  States  and  not  duly  authorized  who 
counsels,  advises  or  assists  in  any  such  corre- 
spondence," "  shall  be  punished,"  etc. 

1799  was  the  year  of  George  Washington's 
death.  Since  that  period  the  world  has 
evolved  a  thousand  new  problems  for  the 
United  States,  but  none  greater  than  that 
which  has  to  do  with  the  maintenance  of 
neutrality  at  times  when  a  large  part  of  its 
population  because  of  their  foreign  birth  are 
greatly  interested  in  the  success  of  one  or 
another  of  the  countries  at  war. 


2o6    Neutral  Rights  and  Duties 

If  the  nation  needed  a  statute  of  the  char- 
acter indicated  more  than  one  hundred  years 
ago,  it  requires  something  far  more  compre- 
hensive to-day. 

It  is  a  curious  fact  that  this  and  other 
similar  laws,  which  appear  in  the  Compiled 
Statutes  of  the  United  States  were  aimed 
at  Tories  or  disloyal  Copperheads,  while  the 
sort  of  legislation  now  demanded  is  required 
to  meet  the  plots  of  the  same  sort  of  recreants, 
as  those  with  whom  former  generations 
dealt  but  who  pose  to-day  under  the  name 
of  hyphenated  Americans. 

While  the  principal  feature  making  the 
above  classes  akin  is  disloyalty — the  object 
sought  by  the  culprits  at  present  is  notably 
different  from  that  which  was  aimed  at  in 
past  periods  and  is  significant.  Aforetime  it 
was  the  endeavor  of  these  malcontents  to  sap 
the  belligerent  strength  of  the  government. 
To-day  the  effort  is  aimed  at  its  neutrality, 
and  a  suitable  maintenance  of  correct  rela- 
tions with  belligerents. 

Nothing  can   more  clearly  illustrate  the 


Hostile  Agents  in  Neutral  States  207 

point  which  has  been  made  in  earHer  chapters, 
that  neutrahty  is  far  from  being  synonymous 
with  any  status  that  suggests  weakness  or 
debiHty.  A  neutrahty  that  does  not  conno- 
tate preparedness  and  virihty  is  not  only  use- 
less, as  far  as  the  maintenance  of  peaceful 
relations  is  concerned,  but  is  frequently  more 
dangerous  than  frank  belligerency. 

3.  Besides  providing  for  ample  notification 
and  requiring  obedience  from  its  own  people, 
a  sovereign  state  which  intends  to  make  its 
neutrality  respected  must  in  the  third  place 
frankly  and  fearlessly  address  itself  to  the 
labor  of  holding  in  check  the  alien  residents 
in  its  borders  who  show  an  inclination  to  con- 
spire against  its  interests. 

The  task  should  not  be  as  difficult  as  many 
imagine.  While  the  foreigner  to  be  dealt 
with  may  at  first  appear  to  be  better  char- 
acterized by  the  Latin  word  inimicMS,  which 
denoted  a  private  enemy,  than  by  the  word 
hostis  or  public  enemy,  and  therefore  not 
within  the  reach  of  statutory  enactments 
which  provide  for  the  expulsion  and  regula- 


2o8    Neutral  Rights  and  Duties 

tion  of  the  subjects  of  a  state  with  whom  the 
aggrieved  nation  is  at  war,  adjudications  and 
statements  by  learned  authorities  are  not 
lacking  which  indicate  that  the  citizens  of  a 
country  which  is  making  preparation  for  war 
or  threatening  hostilities,  may  be  treated  as  if 
war  were  already  declared.  This  is  set  out  in 
Section  4067  of  the  Compiled  Statutes  of  the 
United  States,  which,  besides  giving  the 
President  wide  powers,  recites : 

Where  "there  is  a  declared  war  between  the 
United  States  and  any  foreign  government  or 
any  invasion  or  predatory  incursion  is  perpet- 
rated, attempted  or  threatened  against  the  ter- 
ritory of  the  United  States  by  any  foreign" 
government,  "and  the  President  makes  public 
proclamation  of  the  event,"  "all  subjects," 
etc.,  "of  the  hostile  nation,"  etc.,  "in  the 
United  States  shall  be  liable  to  be  "appre- 
hended, restrained,  secured  and  removed  as 
alien  enemies." 

Five  years  ago  the  interpretation  of  such  a 
statute  would  have  been  different  than  that 
which  should  be  given  it  to-day.     Then  the 


Hostile  Agents  in  Neutral  States  209 

world  clung  to  standards  that  had  been 
gradually  evolved  as  the  nations,  after  shaking 
off  the  cloak  of  barbarism,  worked  out  a 
system  of  relations  based  on  good  faith.  To 
the  minds  of  the  epoch  preceding  the  great 
war  that  is  now  impoverishing  the  world — 
"preparations  for  commencing  hostilities  or 
invasion,"  meant  acts  that  were  in  the  open 
and  unmistakable.  Charges  and  counter- 
charges since  August,  19 14,  and  evidence 
that  cannot  be  shaken  of  secret  plans 
worked  out  in  our  country  for  the  extinction 
or  demoralization  of  other  sovereign  states 
have  shown  the  danger  of  relying  upon  such 
an  understanding. 

The  moment  that  a  government  is  satisfied 
by  the  reports  of  its  agents  that  plans  are 
under  way  for  its  undoing  it  should  consider 

itself  as  at  liberty  to  act. 
14 


CHAPTER  XXV 
A  NEW  problem:  aliens  and  hyphenated 

CITIZENS  IN  NEUTRAL  STATES 

IT  has  been  seen  how  difficult  resident  aUens 
*  may  make  it  for  a  neutral  to  guard  its 
own  rights.  More  and  more  does  he  threaten 
by  embarrassing  acts  and  influences  to  em- 
broil people  who  offer  him  hospitality  in 
the  wars  that  are  racking  other  states.  It  is 
difficult  enough  to  play  the  r61e  of  a  neutral, 
far  harder  than  to  enact  the  part  of  a  belliger- 
ent. In  the  latter  case  forces  are  unleashed 
that  aforetime  were  restrained  by  law  and 
precept.  Simple,  primitive  hate  works  its 
ends  upon  the  enemy  without  much  re- 
striction, and  non-combatants  excuse  much 
to  berserker  rage.  In  the  former  the  neutral 
is  not  only  expected  to  maintain  with  absolute 
correctness  all  customary  relations  with  the 

210 


Aliens  in  Neutral  States      211 

nations  at  feud,  but  to  assume  many  grievous 
responsibilities  which  are  thrust  upon  it. 
Unenviable  as  is  the  lot  of  a  people  that 
desires  to  maintain  an  impartial  attitude 
toward  nations  that  have  drawn  the  sword, 
the  hyphenated  citizen,  alien  at  heart  and  in 
heart-allegiance,  and  the  plain  unvarnished 
alien,  a  less  objectionable  character,  threaten 
to  provide  pitfalls  that  the  wisest  ministry 
cannot  avoid. 

That  this  has  not  always  been  so  is  ex- 
plained by  the  fact  that  the  alien  as  such, 
ensconced  in  neutral  territory,  has  only 
recently  thrust  himself  upon  the  world's 
attention.  Up  to  the  period  of  the  Russo- 
Turkish  war  immigration  for  purposes  of 
bettering  one's  condition  by  temporarily 
abiding  in  foreign  lands,  was  unfashionable. 
Removal  to  countries  near  at  hand  would  be 
without  purpose,  because  economic  condi- 
tions therein  were  no  better  than  those  which 
existed  at  home,  and  a  voyage  across  seas 
for  transient  residence  elsewhere  took  too 
much  time  and  money  to  make  it  practicable. 


212    Neutral  Rights  and  Duties 

People  who  huddled  into  the  uncomfortable 
steamships  of  those  days  were  possessed  by 
a  dread  which  made  them  hate  and  fear 
the  governments  to  which  they  were  subject, 
or  by  a  yearning  ambition  to  better  the 
condition  of  themselves  and  their  children 
by  permanent  settlement  under  favorable 
auspices.  In  direct  proportion  to  their 
numbers  therefore,  they  were  imbued  with  a 
spirit  which  made  them  welcome  to  newer 
countries,  whose  founders  had  anticipated 
their  dreams,  and  they  readily  became  bone 
of  the  best  bone  in  the  land  which  adopted 
them.  Subsequent  wars  being  minor  in 
character  or  else  waged  between  peoples 
who  had  not  emigrated  in  such  numbers  and 
to  such  neutral  centers  as  to  much  affect 
relations,  gave  no  hint  that  cheap  and  quick 
transportation  was  already  seriously  affecting 
the  relations  of  sovereign  states,  because  of 
the  enormous  increase  of  the  emigrant  wave 
moving  toward  the  West.  It  was  obvious 
that  some  countries  were  being  depopulated 
— that  sections  of  other  lands  were  becoming 


Aliens  in  Neutral  States      213 

congested,  and  that  knotty  problems  in 
civics  were  the  result — but  few  expressed 
apprehension  as  to  the  bearing  these  abnor- 
mal conditions  would  have  upon  a  war  status, 
and  world  hostilities  now  raging  were  far 
developed  before  the  first  note  of  alarm  was 
uttered,  or  any  one  appreciated  the  necessity 
of  enacting  legislation  to  guard  against 
resulting  complications. 

This  has  now  fittingly  become  the  task  of 
the  United  States — first — because  it  has 
chosen  to  be  the  refuge  of  more  migratory 
peoples  than  any  other  land — second — from 
its  notable  position  as  the  champion  of  neu- 
trality— and  third — because  it  has  formed 
the  habit  of  accepting  and  solving  world 
puzzles  that  affect  humanity  without  warning 
or  preparation. 

It  is  unfortunate  in  this  case  that  there  is 
little  to  build  upon  but  general  principles 
and  nothing  in  the  way  of  precedents. 

It  is  also  unhappily  true  that  the  American 
public  as  such  are  hopelessly  ignorant  of  the 
situation  that  is  developing. 


214    Neutral  Rights  and  Duties 

Prior  to  August,  19 14,  the  average  citizen 
knew  that  in  single  years  a  million  and  a 
quarter  of  foreigners,  for  the  most  part  non- 
English  speaking,  were  entering  the  country. 
He  was  also  dimly  conscious  that  the  immi- 
grant tide  was  swelling  because  of  economic 
conditions,  and  the  elimination  of  obstacles 
that  had  discouraged  travel. 

Beyond  that  point  he  did  not  go.  Here  and 
there  voices  were  raised  in  warning  because 
the  authorities  failed  to  work  out  any  proper 
plan  for  regulating  and  handling  these 
immense  masses  between  which  and  the 
resident  population  of  the  country  there  was 
little  in  common.  Other  voices,  however, 
and  these  far  more  numerous  and  authorita- 
tive, were  eloquently  depicting  the  virtues  of 
isolated  newcomers,  elaborating  the  theory 
of  the  melting-pot,  and  drawing  somewhat 
fantastic  pictures  of  a  new  nation  which  if 
not  "conceived  in  liberty,"  would  arrive  at 
such  a  oneness  of  thought  and  ambition  as 
to  make  the  state  omnipotent  and  bring  in 
the  millennium. 


Aliens  in  Neutral  States      215 

It  cannot  be  gainsaid  therefore  that  out- 
side of  school-teachers  who  chafed  at  the 
miserable  appropriations  accorded  them  for 
the  instruction  of  these  people,  and  far-sighted 
maniifacturers  who  had  sufficient  intelligence 
to  note  the  revolutionary  disposition  of  the 
leadership  which  has  secured  control  of 
unskilled  labor,  there  has  been  a  disposition 
on  the  part  of  the  body  politic  as  a  whole  to 
accept  the  theory  of  the  optimists  and  to 
drift. 

What  is  to  be  done  to  overcome  this  inertia 
before  something  more  positive  and  satis- 
factory than  opportunist  measures  can  be 
framed  and  enacted? 

The  only  answer  that  readily  occurs,  if  it 
once  be  allowed  that  inaction  is  dangerous 
and  that  Congress  does  not  appreciate 
the  fact  sufficiently  to  pass  required  laws, 
is  one  that  urges  a  publicity  campaign  to 
thoroughly  arouse  the  people  whose  votes 
make  and  unmake  legislatures.  Such  a 
campaign  can  be  initiated  by  the  Adminis- 
tration   in    power,    by    groups    of   informed 


2i6    Neutral  Rights  and  Duties 

patriots,  or  by  individuals  who  have  facts 
and  figures  at  their  command.  It  makes 
little  difference  in  a  Democracy  where  every 
citizen  is  a  sovereign  who  introduces  the 
movement. 

The  main  point  is  this:  that  if  it  be  not 
undertaken,  and  adequate  legislation  is  im- 
possible without  it,  then  the  United  States 
is  sure  to  fail  in  its  duty  as  a  neutral — 

First — to  its  own  citizens,  who  desire  to 
shun  war. 

Second — to  the  belligerent  governments 
who  are  injuriously  affected  by  the  action  of 
enemy  mobs  or  persons  living  under  a  neutral 
flag. 

Third — to  other  neutrals. 

It  is  from  a  conviction  that  no  issue  now 
before  the  United  States  and  neutral  nations 
similarly  situated,  outweighs  one  which  has 
to  do  with  the  regulation  of  the  members  of 
foreign  colonies — that  this  and  a  former 
chapter  have  been  inserted  in  a  brief  treatise 
upon  the  Rights  and  Duties  of  Neutrals. 

Meanwhile,  inasmuch  as  the  matter  thus 


Aliens  in  Neutral  States      217 

referred  to  is  probably  for  the  first  time 
brought  to  the  attention  of  those  interested 
in  the  Law  of  Nations  as  one  deeply  affecting 
the  maintenance  of  neutrality,  it  seems  pru- 
dent to  attach  the  following  facts  and  figures : 

The  six  states,  Massachusetts,  Rhode 
Island,  Connecticut,  New  York,  New  Jersey, 
and  Pennsylvania  appear,  from  figures  pur- 
porting to  be  copied  from  the  Thirteenth 
United  States  Census,  to  have  contained  in 
or  about  the  year  19 10 —  99,171  factories,  or 
more  than  one  third  of  all  such  establishments 
in  the  United  States.  These  represented 
at  that  time  a  capital  of  $8,593,809,000,  or 
nearly  one  half  of  the  whole  amount  of  money 
set  apart  for  manufactiiring  purposes.  The 
same  states,  which  are  contiguous  to  each 
other  along  the  Atlantic  seaboard,  contained 
in  the  said  year  approximately  23,339,674 
people  of  whom  6,383,993,  or  more  than  one 
fourth  were  foreign-born. 

When  it  is  remembered  that  masses  of  the 
latter  were  so  distinctly  foreign  as  to  be 
ignorant  of  English,  and  that  no  reference  is 


21 8    Neutral  Rights  and  Duties 

made  to  the  millions  upon  millions  who 
confess  a  foreign  parentage  and  are  them- 
selves foreign  at  heart,  or  to  the  millions  of 
non-English  speaking  foreigners  who  have 
entered  this  section  since  1910,  it  must 
graphically  appear  to  the  least  thoughtful 
that  the  situation  may  well  become  em- 
barrassing. 

Let  us  suppose  that  foreign  states  which 
are  at  war,  and  whose  subjects  many  of  these 
people  are,  see  fit  to  refuse  such  accommoda- 
tion as  the  United  States,  strictly  within  its 
rights,  requires,  or  to  dare  its  resentment — 
and  that  the  enemy  of  the  above  nations 
also  represented  by  millions  of  subjects  resi- 
dent in  America,  insist  that  if  the  United 
States  fails  to  act,  it  will  be  a  breach  of 
neutrality. 

The  American  people  themselves  may  be 
right-minded  and  high-minded.  The  Ad- 
ministration in  Washington  may  be  far- 
sighted  and  vigorous,  but  the  position  of  both 
people  and  Executive  must  in  any  case 
remain  difficult  and  dubious  because  of  the 


Aliens  in  Neutral  States      219 

sentiment  of  the  foreign  colonies,  and  any 
action  must  be  taken  at  risks  which  need  not 
be  recited  here,  until  such  time  as  suitable 
regulative  legislation  is  enacted. 


CHAPTER  XXVI 

EMBARGO 

*"  PHE  turmoil  in  Europe  which  appears  to 
■*•  be  increasing  rather  than  lessening  as 
these  pages  go  to  press,  has  seriously  affected 
neutrals  and  is  ominous  in  its  threatenings 
of  further  complications.  Already  Belgium, 
Italy,  Bulgaria,  Turkey,  and  Portugal  are 
involved  as  partisans  in  the  forceful  solution 
of  issues  which  prior  to  the  initial  acts  of  the 
war,  did  not  seem  to  concern  them,  and  other 
countries  are  finding  it  difficult  to  preserve 
their  neutrality. 

What  nation  will  be  the  next?  While 
events  indicate  Powers  which  are  nearest  to 
the  war  maelstrom,  juxtaposition  is  by  no 
means  the  only  condition  which  may  hasten 
the  answer.  Across  the  Atlantic  great  trad- 
ing neutral  states  have  been   suffering   an 

220 


Embargo  221 

interference  with  cardinal  rights  that  is  not 
only  humiliating  but  expensive.  It  is  not 
probable  that  any  of  them  will  act  from 
sordid  motives,  however  costly  their  experi- 
ences, but  it  is  quite  possible  and  desirable 
for  them  to  use  that  sort  of  firmness  in  press- 
ing representations  and  protests  which  alone 
makes  neutrality  respectable.  Inasmuch  as 
hostilities  may  easily  succeed  the  most 
diplomatic  of  ministerial  demands,  it  follows 
that  commercial  states  which  are  most  dis- 
tant from  the  seat  of  war  may  become 
partisan  quite  as  early  as  those  whose  terri- 
tories and  political  concerns  are  particularly 
affected  by  the  issues  of  the  hour. 

It  is  this  fact  that  makes  it  equally  desir- 
able for  all  neutral  states  which  are  reluctant 
to  throw  down  or  accept  the  gauge  of  battle, 
to  study  means  and  measures  which  fall 
short  of  war  but  can  be  used  to  vindicate 
the  dignity  of  a  sovereignty.  Of  these 
Embargo  is  the  most  important,  although 
given  a  subsidiary  place  by  most  interna- 
tional lawyers. 


222    Neutral  Rights  and  Duties 

Hostile  Embargo  is  defined  by  Hall  as  a 
form  of  reprisal  which  consists  in  the  seizure 
of  ships  of  the  offending  state  at  sea  or  of  any 
property  within  the  state,  whether  pubhc  or 
private,  which  is  not  intrusted  to  the  pubHc 
faith.  Hall  further  says  that  Embargo  is 
sequestration,  and  that  vessels  subjected  to 
it  are  not  condemned  so  long  as  abnormal 
conditions  exist  that  caused  its  imposition. 
If  peace  is  confirmed — they  are  released — 
if  war  breaks  out  they  become  liable  to 
confiscation. 

For  the  purpose  of  bringing  the  matter  to 
the  reader's  attention,  it  is  proper  to  note 
that  this  author  is  apparently  in  accord  with 
Wheaton  and  others  who  suggest  that  if 
hostilities  follow  the  original  seizure,  the  act 
is  to  be  considered  as  one  of  war  from  the 
beginning — hostili  animo  ah  initio.  While 
the  latter  quote  Sir  Walter  Scott  (see  the 
Boedus  Lust,  Rob.  Adm.  Rep.,  v.,  246),  their 
conclusions  are  seriously  questioned,  and 
with  good  reason,  by  Oppenheim.  No  suffi- 
cient argument  is  introduced  to  show  why  an 


Embargo  223 

act  which  was  not  intended  to  be  war,  auto- 
matically becomes  so  by  some  futiire  event, 
and  it  is  very  evident  that  the  acceptance  of 
any  such  theory  which  affects  property  in- 
terests in  a  vital  manner  might  lead  nations 
to  declare  war  when  they  would  far  prefer 
to  first  try  out  coercive  measures  that  were 
moderate  in  comparison.  It  would  also  dis- 
courage neutrals  from  acting  when  their 
interests  required  them  so  to  do. 

With  this  passing  reference  to  a  subsidiary 
matter  which,  wrongly  understood,  may  read- 
ily deprive  the  doctrine  of  hostile  embargo 
of  its  value,  we  are  in  a  position  to  discuss 
the  worth  of  the  latter  to  neutrals,  bearing 
in  mind  a  great  author's  assertion  that  by 
reprisal  "all  acts  otherwise  illegal  are  made 
legal" — a  statement  which  becomes  partic- 
ularly true  when  applied  to  embargo  when 
used  as  a  protest  by  non-combatants  who 
only  seek  to  recoup  themselves  for  injuries 
suffered  at  the  hands  of  belligerents. 

If  hostile  embargo  is  useful  to  nations  at 
war,  it  must  be  doubly  so  to  those  at  peace: 


224    Neutral  Rights  and  Duties 

1.  Because  in  the  former  case  it  is  only 
one  of  many  means  to  an  end — in  the  latter 
it  presents  to  the  neutral  the  most  effective 
instrument,  if  not  the  sole  one  that  can  be 
used  to  accomplish  its  purpose; 

2.  Because  the  belligerent,  although  it 
may  hesitate  to  acknowledge  it,  is  more 
dependent  upon  the  neutral  than  the  neutral 
is  upon  the  belligerent. 

The  very  fact  that  a  nation  is  engaged  in 
war  causes  the  people  of  states  not  thus 
involved  to  withdraw  from  other  intercourse 
with  the  combatant  than  such  as  has  to  do 
with  the  sort  of  trade  that  tempts  their 
cupidity.  Obliged  to  adapt  themselves  to 
conditions,  they  become  more  or  less  self- 
reliant  and  independent.  Should  an  embargo 
be  laid  upon  their  neutral  vessels  or  posses- 
sions by  the  belligerent,  it  is  doubtful  if  other 
property  will  be  secured  than  that  of  venture- 
some neutral  citizens.  The  neutral  nation 
will  be  affected,  but  not  seriously  so. 

Consider  the  status  of  a  belligerent  under 
like  circumstances.     Such  of  its  possessions 


Embargo  225 

as  were  in  neutral  hands  at  the  beginning  of 
the  war  have  remained  there — others  have 
been  added  to  avoid  the  danger  of  having 
them  seized  in  case  of  enemy  conquest.  It 
needs  the  use  of  neutral  harbors  to  provision 
and  refit  its  ships,  and  such  commodities  and 
supplies  as  the  neutral  is  free  to  furnish. 
The  proclamation  of  an  embargo  not  only 
embarrasses  its  relations  with  the  neutral, 
but  may  cause  it  to  lose  strategic  points  of 
value  in  its  relations  to  the  enemy. 

While  the  above  facts  should  not  only  lead 
a  belligerent  to  carefully  refrain  from  the 
sort  of  embargo  that  is  initiated  on  the  plea 
of  necessity,  an  excuse  which  Hautefeuille 
rightly  rejects  with  impatience,  and  should 
also  have  the  effect  of  causing  it  to  avoid 
trying  neutral  patience,  they  ought  to 
strengthen  the  hands  of  the  neutral  Power 
that  is  not  too  weak  to  resist  invasion.  There 
is  belligerent  money  in  its  banks,  belligerent 
supplies  on  its  docks,  or  moving  thereto, 
interned  ships,  war  vessels  in  its  ports,  and 
mayhap  merchantmen  moving  in  the  waters 

IS 


226    Neutral  Rights  and  Duties 

that  it  dominates.  These  all  are  nothing 
more  than  hostages  for  belligerent  good 
behavior  and  reasonable  conduct. 

A  self-respecting  state,  provided  it  is 
prepared  to  defend  itself  in  case  of  military 
operations  against  it  (and  no  neutral  that 
really  wishes  to  maintain  peaceful  relations 
can  afford  to  be  otherwise),  is  thus  in  a 
position  not  only  to  insist  upon  comity  and 
good  faith  on  the  part  of  the  belligerent,  but 
to  perform  its  duties  toward  its  own  people, 
toward  the  enemy  of  the  offending  belligerent, 
and  toward  the  community  of  civilized 
states.  Such  is  the  weapon  of  hostile  embargo 
with  which  circumstances  not  infrequently 
arm  neutrals.  If  non-combatants  are  to 
have  more  consideration  in  the  future  than 
in  the  past,  it  will  be  used  with  telling  effect. 

Should  it  happen  however  that  the  neutral 
state  is  not  prepared  to  go  to  this  length, 
there  is  another  form  of  embargo,  viz., 
Civil  Embargo,  that  is  not  unfamiliar  to  the 
American  people  who  used  it  in  1807.  This 
is  defined  by  Richard  Henry  Dana  in  his 


Embargo  22^ 

notes  to  Wheaton  as  the  "Act  of  a  govern- 
ment detaining  the  ships  of  its  own  people  in 
port."  As  Mr.  Dana  has  pointed  out,  a 
civil  embargo  amounts  in  practice  to  a 
nation's  interdiction  of  commerce — "for  it 
would  usually  be  accompanied  with  a  closing 
of  its  ports  to  foreign  vessels";  and  the  dis- 
tinguished commentator  adds  that  "if  the 
motive  for  this  interdiction  is  simply  munici- 
pal, and  not  in  the  way  of  reprisals  or  hostil- 
ity to  foreign  Powers,  it  has  claims  to  be 
acquiesced  in  by  them, " 

While  a  civil  embargo  that  is  purely 
negative  in  its  attitude  toward  foreign 
governments,  and  therefore  less  objection- 
able, to  them,  might  become  serviceable  to  a 
neutral  state  that  lacked  a  grievance,  it  is  not 
the  sort  that  we  now  have  in  mind  in  dis- 
cussing the  usable  measures  which  a  neutral 
Power  can  use  to  vindicate  its  sovereignty. 
This  should  be  clearly  by  way  of  reprisal, 
being  distinguished  from  hostile  embargo  by 
avoiding  the  seizure  of  foreign  possessions 
and  making  itself  felt  through  the  embarrass- 


228    Neutral  Rights  and  Duties 

ment  caused  the  belligerent  at  whom  it  is 
aimed. 

The  fact  that  it  has  a  retroactive  effect 
upon  the  people  of  the  government  by  whom 
it  is  adopted  and  also  may  readily  bring 
about  unforeseen  complications  unless  wisely 
planned,  should  by  no  means  render  it  as 
impracticable  as  it  was  made  to  appear  by 
Jefferson's  unfortunate  experiment  during  the 
first  decade  of  the  last  century.  "My 
principle,"  said  that  President,  "is  that  the 
conveniences  of  our  citizens  shall  yield 
reasonably"  "to  the  importance  of  giving 
the  present  experiment  so  fair  a  trial  that  on 
future  occasions  our  legislators  may  know 
with  certainty  how  far  they  may  count  on  it 
as  an  engine  for  national  purposes. " 

While  the  words  are  fair  and  the  disposi- 
tion of  the  Executive  was  good,  it  is  unfor- 
tunately true  that  the  act  was  so  wholesale 
in  its  character  and  unhappy  in  its  results  as 
not  only  to  lead  to  the  early  substitution  of 
the  non-intercourse  act  of  1809,  but  to  destroy 
its  value  as  a  precedent  unless  it  is  to  serve 


Embargo  229 

as  a  warning  against  careless  legislation.  It 
is  for  this  purpose  that  it  has  been  given 
attention. 

No  advocate  of  forceful  measures  for  the 
maintenance  of  a  self-respecting  and  respected 
neutrality  is  prepared  to  recommend  the 
adoption  by  neutrals  of  plans  and  policies 
which  will  in  any  way  unfavorably  affect 
their  own  population.  Meantime  it  must  be 
recognized  that,  short  of  war,  there  are  but 
few  expedients  that  they  can  use  to  advantage 
to  command  the  attention  of  a  polite  but 
unscrupulous  belligerent.  It  behooves  them, 
therefore,  in  time  of  stress  to  make  close 
study  of  the  various  features  which  charac- 
terize the  civil  embargo.  Modified  and 
shaped  to  meet  existing  conditions,  it  may  on 
occasion  put  a  neutral  state  in  a  far  more 
favorable  position  in  its  relation  with  bel- 
ligerents than  it  could  otherwise  hope  to 
secure. 


CHAPTER  XXVII 

DUTIES  AS  DEFINED  BY  PROCLAMATION 

T^HE  fact  that  the  foregoing  chapters  have 
-■■  abridged  reference  to  that  part  of  the 
Positive  Law  of  Nations  which  affects  neu- 
trals, in  order  to  discuss  principles  and 
policies,  makes  it  not  undesirable  that  some 
space  should  be  given  before  closing  to  the 
sort  of  specific  injunctions  which  should  be 
given  a  neutral  people  by  its  government  in 
time  of  war. 

These  are  admirably  epitomized  in  the 
proclamation  of  neutrality  made  by  the 
President  of  the  United  States  at  the  outbreak 
of  war  between  Italy  and  Austro-Hungary 
(which  purports  to  be  a  duplicate  of  the 
several  proclamations  issued  by  the  Executive 
as  state  after  state  became  embroiled  in  the 

existing  hostilities),  and  are  unquestionably 
230 


Duties  Defined  by  Proclamation  231 

the  result  of  more  than  a  century  of  admin- 
istrative endeavor  to  make  the  American 
people  neutral  in  fact  as  well  as  in  word. 

To  understand  the  full  significance  of 
this  official  communication  it  will  be  well, 
before  giving  it  careful  examination,  to 
recall : 

1.  That  the  United  States  is  the  greatest 
of  neutrals,  and  that  its  services  to  the  cause 
have  been  of  enduring  value,  and  are  so  rec- 
ognized. 

2.  That  it  was  George  Washington  who 
inaugurated  measures  to  insure  the  neutrality 
of  a  disinterested  state  by  a  proclamation  in 
1793  which  instructed  proper  officers  to 
institute  proceedings  "against  all  persons 
who  shall  within  the  cognizance  of  the 
courts  of  the  United  States  violate  the  law  of 
nations  with  respect  to  the  Powers  at  war  or 
any  of  them," 

3.  That  the  United  States,  as  Oppenheim 
does  not  hesitate  to  state  in  his  great  work 
on  International  Law,  "was  the  most  promi- 
nent and  influential  factor"  in  advancing  the 


232     Neutral  Rights  and  Duties 

rights   of   neutrals   by   its   attitude   toward 
neutrality  from  1793  to  1818. 

4.  That  it  was  the  Congress  of  the  United 
States  that  passed  the  first  foreign  enlistment 
act  which  codified  former  and  important 
enactments  in  181 8,  an  example  that  was 
followed  by  Great  Britain,  which  passed  a 
similar  measure  in  the  succeeding  year. 

5.  That  the  decisions  of  the  United 
States  Courts,  many  of  which  are  briefly 
digested  by  Dana  in  his  copious  notes  on 
Wheaton  (p.  534  et  seq.),  have  brought  into 
the  body  of  international  law  factors  of 
inestimable  value  to  neutrals. 

With  such  introduction,  which  will  suggest 
to  the  student  the  different  steps  which  the 
American  people  have  taken  in  evolving  the 
law  which  is  now  on  their  statute  books  or 
understood  by  their  Executive  to  express  their 
will,  and  without  repeating  the  preamble  of 
President  Wilson's  proclamation,  we  propose: 

I.  To  quote  verbatim  that  part  v/hich 
is  statutory  and  immediately  introductory 
thereto;  and 


As  Defined  by  Proclamation  233 

II.  To  add  a  brief  abstract  of  further 
injunctions  contained  therein. 

I.  I,  Woodrow  Wilson,  President  of  the  United 
States  of  America  ...  do  hereby  declare  and 
proclaim  that  by  certain  provisions  of  the  act  ap- 
proved on  the  4th  day  of  March  a.d.  1909,  com- 
monly known  as  the  "Penal  Code  of  the  United 
States,"  the  following  acts  are  forbidden  to  be 
done,  under  severe  penalties,  within  the  territory 
and  jurisdiction  of  the  United  States,  to  wit: 

1.  Accepting  and  exercising  a  commission  to 
serve  either  of  the  said  belligerents  by  land  or  by 
sea  against  the  other  belligerent. 

2.  Enlisting  or  entering  into  the  service  of 
either  of  the  said  belligerents  as  a  soldier,  or  as  a 
marine  or  seaman  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer. 

3.  Hiring  or  retaining  another  person  to 
enlist  or  enter  himself  in  the  service  of  either  of 
the  said  belligerents  as  a  soldier,  or  as  a  marine 
or  seaman  on  board  of  any  vessel  of  war,  letter 
of  marque,  or  privateer. 

4.  Hiring  another  person  to  go  beyond  the 
limits  or  jurisdiction  of  the  United  States  with 
intent  to  be  enlisted  as  aforesaid. 

5.  Hiring  another  person  to  go  beyond  the 
limits  of  the  United  States  with  intent  to  be 
entered  into  service  as  aforesaid. 


234    Neutral  Rights  and  Duties 

6.  Retaining  another  person  to  go  beyond  the 
Hmits  of  the  United  States  with  intent  to  be 
enlisted  as  aforesaid. 

7.  Retaining  another  person  to  go  beyond 
the  limits  of  the  United  States  with  intent  to  be 
entered  into  service  as  aforesaid.  (But  the  said 
act  is  not  to  be  construed  to  extend  to  a  citizen 
or  subject  of  either  belligerent  who,  being  trans- 
iently within  the  United  States,  shall,  on  board 
of  any  vessel  of  war,  which,  at  the  time  of  its 
arrival  within  the  United  States,  was  fitted  and 
equipped  as  such  vessel  of  war,  enlist  or  enter 
himself  or  hire  or  retain  another  subject  or 
citizen  of  the  same  belligerent,  who  is  transiently 
within  the  United  States,  to  enlist  or  enter 
himself  to  serve  such  belligerent  on  board  such 
vessel  of  war,  if  the  United  States  shall  then  be 
at  peace  with  such  belligerent.) 

8.  Fitting  out  and  arming,  or  attempting  to 
fit  out  and  arm,  or  procuring  to  be  fitted  out  and 
armed,  or  knowingly  being  concerned  in  the 
furnishing,  fitting  out,  or  arming  of  any  ship  or 
vessel  with  intent  that  such  ship  or  vessel  shall 
be  employed  in  the  service  of  either  of  the  said 
belligerents. 

9.  Issuing  or  delivering  a  commission  within 
the  territory  or  jurisdiction  of  the  United  States 
for  any  ship  or  vessel  to  the  intent  that  she  may 
be  employed  as  aforesaid. 

10.  Increasing  or  augmenting,  or  procuring 


As  Defined  by  Proclamation  235 

to  be  increased  or  augmented,  or  knowingly 
being  concerned  in  increasing  or  augmenting, 
the  force  of  any  ship  of  war,  cruiser,  or  other 
armed  vessel,  which  at  the  time  of  her  arrival 
within  the  United  States  was  a  ship  of  war, 
cruiser,  or  armed  vessel  in  the  service  of  either  of 
the  said  belligerents  or  belonging  to  the  sub- 
jects of  either,  by  adding  to  the  number  of  guns 
of  such  vessels,  or  by  changing  those  on  board 
of  her  for  guns  of  a  larger  caliber,  or  by  the 
addition  thereto  of  any  equipment  solely  ap- 
plicable to  war. 

II.  Beginning  or  setting  on  foot  or  providing 
or  preparing  the  means  for  any  military  expedi- 
tion or  enterprise  to  be  carried  on  from  the 
territory  or  jurisdiction  of  the  United  States 
against  the  territories  or  dominions  of  either  of 
the  said  belligerents. 

The  above  recitation  from  the  Penal  Code 
is  followed  by  orders  and  instructions : — 

II.  Prohibiting  use  of  waters  of  the 
United  States  by  armed  belligerent  vessels 
for  the  purpose  of  preparing  for  hostile 
operations,  or  as  posts  of  observation  upon 
the  enemy. 

Specifically  forbidding  any  belligerent  ship 
of  war  to  make  use  of  a  port  or  waters  of  the 


236    Neutral  Rights  and  Duties 

United  States  for  a  war  station,  or  to  secure 
facilities;  or  to  leave  any  harbor  or  waters 
of  the  United  States  from  which  an  enemy 
vessel  shall  have  previously  departed  until 
twenty-four  hours  thereafter. 

Requiring  any  belligerent  warship  that 
enters  United  States  waters  after  the  time 
when  notification  takes  effect,  to  depart 
within  twenty-four  hours,  except  in  case  of 
stress  of  weather  or  need  of  supplies  or  repair, 
in  which  case  the  authorities  are  to  require 
departure  after  necessary  supplies  are  re- 
ceived or  repairs  finished,  arrangements  being 
made  however  that  such  a  ship  shall  not 
depart  (as  before  provided)  within  twenty- 
four  hoiirs  after  an  enemy  ship  has  cleared, 
and  that  if  there  are  several  vessels  of  op- 
posing belligerents  in  given  waters  at  the 
same  time,  provision  shall  be  made  for 
alternate  departure;  and 

Providing  that  such  supplies  as  are  above 
referred  to  shall  only  be  of  sufficient  pro- 
visions, etc.,  as  are  requisite  for  the  subsist- 
ence of  the  crew,  and  so  much  coal  as  will 


As  Defined  by  Proclamation  237 

take  the  ship  to  the  nearest  port  of  her  own 
country,  or,  if  she  carry  sail,  half  the  amount 
of  coal  necessary  for  that  purpose.  Also  that 
such  a  ship  shall  not  return  to  the  waters  of 
the  United  States  again  within  three  months 
without  permission,  unless  she  has  first  en- 
tered a  port  of  the  government  to  which  she 
belongs. 

The  proclamation  further  calls  attention 
to  the  fact  that  the  treaties  and  statutes 
of  the  United  States  and  international  law 
enjoin  all  persons  in  the  territory  of  the 
United  States  to  obey  its  laws — warns  all 
citizens  and  residents  in  the  United  States 
that  while  expressions  of  sympathy  are  not 
restricted,  they  must  not  originate  or  or- 
ganize military  forces  in  aid  of  a  belligerent 
— and  that  while  they  may,  without  restric- 
tion, manufacture  and  sell  munitions  and 
contraband,  they  cannot  carry  such  articles 
on  the  high  seas  for  the  use  or  service  of  a 
belligerent,  nor  convey  belligerent  soldiers, 
nor  attempt  to  break  a  blockade,  without 


238    Neutral  Rights  and  Duties 

incurring  the  risk  of  hostile  capture  and 
penalties. 

While  this  state  document  testifies  to  the 
vigilance  of  the  United  States  Government 
in  endeavoring  to  perform  its  obligations 
toward  belligerents,  its  main  features  are 
incorporated  in  these  pages  because  they 
are  so  admirably  qualified  to  instruct  citizens 
in  regard  to  their  personal  status  as  the 
subjects  of  a  neutral  country.  Meantime 
we  cannot  forbear  from  remarking  that  if 
anything  has  been  overlooked  in  this  endeavor 
to  impress  upon  the  people  of  the  United 
States  the  duty  they  owe  to  themselves  and 
to  other  nations,  it  has  been  rather  in  the 
methods  adopted  to  provide  for  its  circulation 
than  in  the  matter  contained. 

As  has  been  pointed  out  in  recent  chapters, 
an  unfortunate  proportion  of  the  population 
of  the  country  are  ignorant  of  the  English 
language  and  only  receive  such  part  of 
governmental  communications  as  their  racial 
leaders  choose  to  place  in  their  hands.  The 
very  importance  of  the  proclamation  should 


As  Defined  by  Proclamation  239 

therefore  bring  home  to  the  reader  whose 
attention  is  called  to  this  matter  the  necessity 
of  providing  for  the  printing  of  such  publica- 
tions in  various  languages  in  order  that  they 
may  have  the  effect  upon  our  heterogeneous 
public  that  is  desired  by  the  President. 


CHAPTER  XXVIII 

SOME  CONCLUDING  OBSERVATIONS 

INTERNATIONAL  law  is  looked  upon 
*  from  two  points  of  view :  that  of  the  com- 
munity of  civilized  states ;  that  of  the  single 
state  with  its  selfish  interests  very  much 
in  mind. 

As  a  consequence  it  has  been  framed  and 
interpreted  when  framed  so  as  to  square  with 
the  theory  or  plan  that  best  suited  the  con- 
venience of  those  to  be  affected  by  it.  That 
is  why  its  historic  aspect  is  so  marvelously 
bewildering  to  the  student,  who  finds  it, 
when  peace  encourages  commercial  relations 
between  nations,  assuming  the  dignity  of  a 
science;  but  when  the  gates  of  Janus  are 
open,  denied  by  the  men  who  teach  it  in  the 
universities,  except  as  a  dead  thing  that  has 

been. 

240 


Some  Concluding  Observations  241 

In  closing  a  discussion  which  has  had  to  do 
not  only  with  matters  immediately  affecting 
the  United  States,  but  with  principles  which 
underlie  the  well-being  of  human  society,  it  is 
fitting  to  call  attention  to  these  facts  in  order 
that  we  may  better  prepare  ourselves  to  meet 
further  problems.  In  due  course  we  have 
considered  the  doctrines  of  blockade  and 
contraband,  questions  dealing  with  the 
freedom  of  the  seas,  and  measures  and 
conditions  calculated  to  affect  favorably  or 
unfavorably  the  future  of  our  own  people. 
It  will  not  be  surprising  if,  in  so  doing,  we 
have  been  impressed  anew  with  the  truth 
that  neutral  rights  automatically  receive 
recognition  when  the  interests  of  the  race 
are  uppermost,  and  that  neutral  duties  are 
emphasized  at  times  when  specific  nations 
control  the  center  of  the  stage;  or — to  put  it 
differently — that  neutrals  gain  ground  when 
their  point  of  view,  which  is  generally  that 
of  the  community  of  states,  commands 
attention,  and  lose  when  it  is  difficult  for 
them  to  secure  a  hearing.     Should  this  be  the 


242    Neutral  Rights  and  Duties 

case,  let  us  hope  that  it  will  not  encourage 
pessimism  or  skepticism,  on  the  ground  that 
the  crystallized  wisdom  of  the  past,  as  ex- 
pressed in  international  law,  is  something 
worthless. 

There  is  surely  no  adequate  reason  why  it 
should  do  so.  First,  because  no  one  has  ever 
claimed  that  the  law  of  nations  had  reached 
its  ultimate  form,  and  second,  because 
everyone  has  been  and  is  perfectly  conver- 
sant with  the  fact  that  it  is  little  more  than  a 
codification  of  various  compromises.  As  a 
matter  of  fact  a  frank  appreciation  of  condi- 
tions ought  to  have  a  stimulating  effect  and 
lead  to  constructive  effort.  It  is  a  great  thing 
to  know  what  is  the  matter  with  past  plans 
that  have  not  carried,  and  perils  that  must 
be  guarded  against  in  future  building.  To 
the  proper  spirit,  the  consciousness  of  having 
known  that  some  lines  of  past  endeavor  could 
not  and  ought  not  to  succeed  because  of 
inherent  weakness,  can  be  no  handicap  to 
new  effort.  Failures  of  this  nature  cor- 
roborate the  correctness  of  a  sane  judgment. 


Some  Concluding  Observations  243 

Why  should  it  be  otherwise  with  the 
student  of  international  affairs  who  sincerely 
desires  the  ultimate  enthronement  of  law? 
He  has  been  perfectly  conscious  that  inter- 
national law  was  arbitrary,  illogical,  and 
founded  on  wrong  premises ;  that  the  point  of 
view  of  the  individual  state,  rather  than  that 
of  the  sisterhood  of  nations,  in  normal  times 
and  relations,  had  shaped  existing  rules  and 
customs.  At  the  same  time  he  has  not  been 
ignorant  of  that  economic  ethical  law — the 
natural  law  of  Grotius — which,  recognized  or 
unrecognized,  is  always  dominant  and  con- 
trolling. Should  he  not  therefore  welcome  an 
upheaval,  like  that  which  is  tossing  about  the 
present  generation,  as  a  cleansing  fan  which 
will  sweep  away  much  litter,  and  clear  the 
way  for  some  honest  building? 

All  that  is  now  happening  was  strangely 
enough  foretold  by  William  Edward  Hall  (a 
name  held  in  high  reverence  by  international 
lawyers),  August,  1889,  in  a  preface  to  his 
work  on  the  Law  of  Nations.  After  noting 
that  recent  centuries  had  indicated  a  resur- 


244    Neutral  Rights  and  Duties 

gence  of  law  succeeding  the  apparent  breaking 
down  of  restraint  in  great  conflicts,  this  emi- 
nent observer  points  out  that  something 
exceptional  in  the  matter  of  wars  may  well  be 
anticipated  by  his  contemporaries,  in  which 
"questions  of  half  a  century  will  be  given  all 
their  answers  at  once, "  and  adds  the  follow- 
ing impressive  sentences  which  may  well  be 
borne  in  mind  by  those  who  have  faith  in  the 
ultimate  triumph  of  law : 

"If  the  next  war  is  unscrupulously  waged  it 
will  also  be  followed  by  a  reaction  toward  the 
strengthening  of  law:" 

"It  is  a  matter  of  experience  that  times 
when  International  Law  has  been  disregarded 
have  been  followed  by  periods  in  which  the 
European  conscience  has  done  penance. " 

We  have  said  that  international  law  is 
looked  upon  from  two  points  of  view.  May 
it  now  be  added,  with  the  expectation  that 
the  individualist  will  agree,  that  no  law  of 
nations  is  of  any  value  whatever  unless  the 
point  of  view  of  the  single  state  is  subordi- 
nated to  that  of  the  sisterhood  of  nations?  To 


Some  Concluding  Observations  245 

those  who  regard  all  outside  of  the  borders 
of  their  native  land  as  "barbarians,"  this 
statement  may  seem  absurd,  and  there  will 
be  those  who  will  feel  much  the  same  way 
although  they  are  far  from  being  exclusive, 
and  are  only  properly  patriotic. 

However  this  may  be,  is  there  any  way  of 
escape?  Our  fathers  recognized  the  indi- 
vidual man  as  free  and  the  arbiter  of  his  own 
fortunes,  but  could  find  no  way  of  securing  to 
him  his  rights  without  establishing  a  govern- 
ment of  laws.  It  is  emphatically  the  same 
way  with  the  nations.  Each  constituent  fac- 
tor in  the  Society  of  States  is  jealous  of  its 
independence  and  impatient  of  dictation. 
Notwithstanding  this  fact  it  is  absolutely 
dependent  upon  a  reign  of  law  if  it  is  to  be 
protected  from  the  aggression  of  others  and 
to  maintain  those  privileges  which  it  claims. 
To  secure  such  conditions  it  must  voluntarily 
surrender  something  of  its  own  will  to  the 
expressed  dictation  of  its  peers  which  are 
none  less  than  sovereign  states  themselves. 

It  is  because  this  has  not  been  done  in  the 


246    Neutral  Rights  and  Duties 

past  that  the  law  of  nations  has  proved  so 
unsatisfactory  in  a  crisis.  Where  municipal 
law,  while  protecting  each  citizen,  has  hedged 
him  about  so  that  the  conduct  of  his  affairs 
has  been  somewhat  modified  by  the  normal 
requirements  of  the  public;  international 
law  has  permitted  individual  states  either  as 
belligerents,  or  as  historic  nations  with  a 
record  for  belligerency,  to  dictate  to  all  other 
sovereignties  either  through  unnatural  rules 
and  customs  or  with  the  "mailed  fist. "  One 
does  not  have  to  be  wise  in  philosophy  or 
affairs  to  realize  how  insufficient  and  un- 
reasonable is  such  a  code — nor  how  impos- 
sible when  the  welfare  of  neutral  Powers  is 
at  stake. 

In  so  far,  then,  as  the  law  of  nations  has 
heretofore  contained  in  itself  that  which  was 
flagrantly  bad  and  unstable  is  there  not 
cause  for  genuine  rejoicing  because  its 
fallacies  have  been  exposed  and  because 
many  of  its  arbitrary  creations  have  been 
wrecked?  Such  exposure  and  destruction 
will  be  found  to  have  left  unscorched  rules 


Some  Concluding  Observations  247 

founded  on  eternal  principles,  however  tem- 
porarily flouted  and  mishandled  by  the 
unscrupulous.  Sometimes  more  is  accom- 
plished by  tearing  down  that  which  is  in- 
jurious, than  in  erecting  that  which  is 
weakly  good.  Aside  from  the  positive 
betterment  of  conditions  that  comes  about 
with  the  correction  of  error,  the  occasion 
gives  an  opportunity  for  the  construction  of 
something  stable  and  permanent. 

Shall  we  not  hope  that  the  close  of  the 
present  conflict  in  Europe  will  find  the  United 
States : 

1.  Reconciled  to  the  breaking  down  of 
principles  not  founded  upon  the  law  of 
nations. 

2.  Insistent  that  a  corrected  and  purified 
international  law  shall  safeguard  the  normal 
relations  of  states. 

3.  Prepared,  so  that  with  the  next  great 
confiict  it  can  forcefully  prevent  the  breach 
of  laws  which  directly  or  indirectly  affect  its 
welfare. 

To  Hautefeuille,  whose  frequent  references 


248    Neutral  Rights  and  Duties 

to  the  primary  law  must  be  justified  in  these 
days  when  nations  have  had  to  fall  back  on 
fundamentals,  the  last  duty  and  right — 
devoir  et  droit — of  neutrals  lies  in  an  un- 
flinching resistance  to  every  belligerent 
aggression,  and  in  a  Preparedness  that  will 
make  such  resistance  effective. 

During  the  present  war  the  United  States 
has  perhaps  properly  confined  itself  to  repre- 
sentations and  protestations.  These  are  well 
enough  in  their  place,  but  international  law 
will  never  assume  the  position  which  belongs 
to  it,  nor  non-belligerent  nations  secure  their 
rights,  until  neutrals  are  themselves  pre- 
pared single-handed  or  in  company  to  join 
battle  in  vindication  of  principles  to  which 
they  are  committed. 


INDEX 


Alien,  malefactors  to  be  sharply  handled,  198;  residents 
to  be  checked  by  neutral,  207;  a  new  problem,  210  et  seq. 

Allies,  attitude  toward  Declaration  of  London,  105,  106, 
107;  action  of,  11 1;  taking  neutral  ships  to  harbors  of , 
112;  not  in  control  of  certain  waters,  1 16;  use  of  muni- 
tions, 122;  action  on  contraband,  154 

Ambassadors,  etc.,  status  of,  when  conspiring,  196;  treat- 
ment of  certain,  197 

America,  War  of  1812,  12 

American,  attitude  in  Lusitania  matter,  29,  30;  ports,  ill; 
doctrine,  165 

American  citizenship,  referred  to  by  President,  189 

American  Civil  War,  rules  of  blockade,  82;  blockade  of 
Confederate  coast,  95,  121 

American  Government,  attitude  of,  20;  withdrawal  of 
overtures,  104 

American  people,  choice  between  peace  and  righteousness, 
23;  not  unneutral,  notwithstanding  opinion,  192;  en- 
dangered by  belligerent  activities,  201;  affected  by 
sentiment  of  foreign  residents,  218,  219 

Americans,  on  liners,  49,  50,  54;  sympathy  of,  193,  194; 
hyphenated,  likened  to  Tories,  etc.,  206;  ignorant  of 
immigrant  complications,  213,  214 

Ammunition,  138 

Ancipitis  usus,  137,  146 

Armed  neutralities,  92 

Armenian,  case  of,  48  et  seq. 

Arms,  138;  absolute  contraband,  148 

Arthur,  the,  94 

Artillery,  new  conditions,  13 

Austria-Hungary,  affected  by  new  form  of  blockade,  loi ; 
attitude  toward  Declaration  of  London,  105;  attempt 
to  blockade  goods  to,  1 1 1 

Authority,  when  to  be  heeded,  78 
249 


250  Index 


Belligerency,  abnormal  status,  133 

Belligerent,  use  of  embargo,  223  et  seq.;  limitations  of,  20; 
aggressive  acts  of,  33;  Netherlands,  43;  treatment  of 
convoyed  ship,  45;  use  of  neutral  flags,  56  et  seq.;  Govern- 
ment's rebuff  of  neutral,  62;  misuse  of  neutral  territory, 
62;  as  innovator,  67,  70;  normal  sphere  of,  76;  test  of 
action,  72;  certain  supremacy  of,  78;  as  to  dominion 
of,  78;  necessity,  79;  chafing  over  rules,  82;  affected  by 
changes,  82;  as  to  blockade  of  neutral,  120;  as  to  acts 
of,  129;  activities  an  imposition,  143,  164;  claim  to 
preempt  neutral  ships,  146;  affected  by  changing  times, 
174;  striking  enemy  through  neutral,  200;  restrictions 
on,  by  proclamation,  233  et  seq. 

Belligerents,  not  to  dictate  future  law,  29;  action  of,  when 
suicidal,  36;  making  rules,  93;  response  to  query  of 
United  States,  104;  neutral  refusal  to  surrender  rights 
to,  115;  affected  by  performance  of  duty  by  neutral, 
168  et  seq.,  171-173 

Belligerent  agents,  in  neutral  states,  195-209;  affected  by 
neutral  rights,  197;  to  control  non- resident  subjects,  197 

Bermuda,  case  of,  129,  164 

Blockade,  82  et  seq.,  120;  no  ground  for,  on  high  seas,  17;  as 
to  convoy  in  time  of,  39;  episodes  of,  in  19 14,  66;  neutral 
attempt  to  defend  law  of,  69;  neutral  attitude  toward 
changed  law  of,  71 ;  field  of,  77;  high  act  of  sovereignty, 
83;  summary  of  London  Declaration  regarding,  89; 
effective,  88,  92  et  seq.;  runners,  95;  paper,  92;  de  facto, 
94;  discussion  of  practice  of,  102;  submarine,  109,  no; 
by  Order  in  Council,  113;  of  German  ports,  114;  Civil 
War,  121;  as  to  defensibility  of  extending,  123  et  seq.; 
not  unreasonable  doctrine,  134;  proper  limit  of,  141 

British,  56;  interference  with  neutral  trade,  124;  use  of  neu- 
tral flag,  60;  zone,  39;  proclamation,  features  of,  115;  dec- 
laration reference  to  Germany,  1 13 ;  grounds  for  action, 
118 

British  Government,  Armenian  incident,  49,  56;  blockade 
of  neutrals,  87;  as  to  Declaration  of  London,  105;  ac- 
ceptance of  American  doctrine,  165;  see  Orders  in  Coun- 
cH 

Bryan,  resignation  of,  23,  25;  effect  of  his  platform,  28 

Bynkershoeck,  quoted,  83 

Cargoes,  transshipment  of,  40 
Carnegie  endowments,  86 
Casus  belli,  1 10 


Index  251 


Censor  for  neutral  news  agencies,  51 

Central  Powers,  blockade  of,  39;  at  disadvantage,  122; 
action  on  contraband,  154  et  seq.;  attitude  toward 
Declaration  of  London,  104 

Christianity,  teachings  of,  25 

Cleveland  Conference,  3 

Confederate  coast,  blockade,  in  American  Civil  War,  95 

Confiscation,  92,  145;  of  goods,  when,  161 

Connecticut,  218 

Consolato  del  Mare,  26 

Continuous  voyage,  112,  145,  123  et  seq.;  construed,  107 

Contraband,  127  et  seq.;  further  defined,  151  et  seq.;  epi- 
sodes in  19 14,  66;  neutral  defense  of  positive  law  of,  69; 
neutral  attitude  toward  changes  in,  71;  corollary  of 
blockade,  77;  pushing  doctrine  of,  lii;  concealed,  112; 
consigned  to  neutral  for  enemy,  112;  copper,  1 13 ;  author- 
ity to  seize,  121;  neutral  freedom  to  trade  limited  by 
concessions  as  to,  123;  declaration  making  cotton 
contraband,  126;  unqualified  contraband  cause  of 
strife,  135;  doctrine  unsatisfactory,  136  et  seq.;  absolute, 
144  et  seq.;  136,  138,  162;  conditional,  146,  162;  lists  of, 
147  et  seq.;  when  conditional  contraband  becomes 
absolute,  148  et  seq.;  modification  of  list,  156;  carriage 
of,  159  et  seq.;  continuous  voyage,  159;  prohibition  af- 
fecting, municipal,  160;  rules  may  become  oppressive,  162 

Convention,  international,  neutral  attitude  in,  80 

Convoy,  39  et  seq. 

Copperheads,  likened  to  "hyphens,"  206 

Cotton,  declaration  making  c.  contraband,  126 

Cotton  bales,  use  to  conceal  copper,  113 

Dana,  Richard  H.,  226,  232 

Declaration  of  blockade,  84  et  seq. 

Declaration  of  London,  matters  not  settled  by,  33;  as  to 
convoy,  42;  defense  of  blockade,  etc.,  86,  87,  88,  92; 
blockade  question  of  fact  by,  96  et  seq.;  standing  of,  in 
Europe's  war,  104,  105,  136  et  seq.,  140;  regulations  as  to 
contraband,  147;  as  to  new  lists,  149;  attitude  of  war 
powers  toward,  151;  United  States  withdraws  sugges- 
tions, 153;  referred  to,  161;  as  to  duties  of  neutrals,  169 

Demosthenes,  quoted  by  Phillimore,  131 

Denmark,  receipt  of  enemy  goods  by,  41 

Distress,  vessels  in  (blockade),  89 

Doctrinaires,  rulings  accepted  as  law,  141 

Doctrine,  regarding  artificial,  159 


252  Index 


Doctrines,  as  to  doing  away  with  objectionable,  155 
Dominion,  criterion  of,  12,  13;  justifiable  as  a  standard,  71; 
definition  of,  71;  by  right  or  might,  72,  74;  vindicable, 
72,  73;  valid  exercise  of,  85;  criterion  of  blockade,  94 

Eastern  Hemisphere,  66 

Effectiveness,  as  requisite  of  blockade,  92  et  seq. ;  ought  not 
to  vindicate  blockade,  93 ;  no  basis  for  extension  of  block- 
ade, 123  et  seq. 

Embargo,  220  et  seq.;  civil,  226 

Enemy,  neutral  participation  in  trade,  34;  neutral  citizens 
in  service  of,  55;  flag,  58;  exports,  39;  control  of  coast  of, 
85,  86;  coast-areas  of,  98;  receiving  goods  through 
neutral  ports,  106;  navigation  by,  107;  consignment 
for,  112;  injured  by  British  policy,  114;  condition  of, 
not  a  suitable  index  of  efficient  blockade,  124;  affected 
by  attack  on  neutrals,  199;  private  and  public  e.  dis- 
tinguished, 207;  insistence  of,  that  neutral  shall  resent 
imposition,  218 

England,  War  of  1812,  1 1 ;  as  to  Declaration  of  London,  104 

English  Channel,  blockade  of,  103;  war  zone,  107 

Escape  from  submarines,  50 

Explosives,  include  what,  154 

Flad  Ozen,  case,  19 

Flag,   British  use  of  neutral,   56  et  seq.;  United  States 

respect  for,  56;  law  in  Massachusetts,  57;  vessels  with 

United  States  flag  detained,  106 
Fleet,  dispersion  of,  on  blockade,  88 
Foreign-bom  citizens,  referred  to,  189 
Foreigners,  domiciled  in  a  neutral  country,  196;  number  of, 

annually  entering  U.  S.,  214;  in  seaboard  states  of  U.  S., 

218,  219;  proclamations  should  be  in  language  of,  238 
Fortress,  new  conditions,  13 
France,  106;  as  to  Declaration  of  London,  104 
French  Government,  decree  of,  III;  adoption  of  British 

list  of  contraband  by,  150 

German,  decree  of  Feb.  4,  109;  submarine,  109 
Germany,  application  of  precedents,  12;  submarine  policy 
a  danger  to,  36;  use  of  submarines  by,  49;  affected  by 
new  form  of  blockade,  loi;  proclamation  of  war  zone, 
107;  independent  of  her  ports,  1 1 1 ;  referred  to,  1 13,  114; 
neutral  countries  adjacent  to,  122;  action  regarding  non- 
contraband,  155 


Index  253 


Great  Britain,  106:  Mason  and  Slidell  incident,  11 ;  theory 
of  war  zones,  36;  submarine  warfare  a  precedent  for,  36; 
theory  of  blockade,  40;  war  with  Netherlands,  42;  atti- 
tude toward  convoy,  44;  search  of  neutral  warship,  46; 
on  use  of  flag,  58,  62;  claim  as  to  blockade  rights,  87;  af- 
fected by  new  form  of  blockade,  loi;  blockade  of 
waters  about,  103;  Grey's  claim  as  to,  124;  adds  to 
contraband,  152 

Grenville,  Lord,  132 

Grey,  Sir  Edward,  note  of  February  19,  1915,  59;  letter  of 
defense,  177  et  seq.,  122 

Grotius,  130;  quoted,  6,  83;  to  Oppenheim,  136,  137,  243 

Hague  Conference,  of  1907,  86,  170  et  seq. 
Hall,  W.  E.,  5;  embargo  defined  by,  222,  243 
Hautefeuille,  L.  B.,  225,  247 
Holland,  receipt  of  enemy  goods  by,  41 
Hyphenated  citizens,  a  new  problem,  210 

Immanuel,  case  of,  129 

Immigrants,  basis  for  future  trouble  in  international 
matters,  195  et  seq. 

Immigration,  slovenly,  policy  of  U.  S.,  195;  to  time  of 
Russo-Turkish  war,  211 

Individuals,  affected  by  Law  of  Nations,  102 

Industries,  effect  of  blow  at,  199 

Innovations,  belligerent,  66  et  seq.;  submarine,  109; 
American,  121 

International  Law,  new  factor  in,  195 ;  self-respect  a  princi- 
ple of,  200;  conditions  opportune  for  recasting  of,  239 
et  seq. 

Issues,  false,  10  et  seq. 

JeflFerson,  President,  civil  embargo  of,  228 
Jurists,  attitude  toward  blockade,  83 ;  acceptance  of  Ameri- 
can doctrine,  165 

Kamtchatka,  17 
Kent,  Chancellor,  127 

Law  of  Nations,  control  of  foreign  residents,  new  problem 
for,  218;  prophetical  preface  in  Hall's  treatise  on,  243, 
244;  conditions  opportune  for  recasting  of,  239  et  seq. 


254  Index 


London  Conference,  see  Declaration  of  London 

Lordship,  77 

Lusitania,  incident  of,  22  et  seq.,  48 

Manufacture  of  arms,  etc.,  things  entering  into,  138 
Manufacturing  plants,  destruction  of,  196;  one  third  of,  in 

certain  States,  218 
Mason  and  Slidell  incident,  1 1 
Massachusetts,  218 
Matamoras,  164 

Merchant  Shipping  Act,  on  use  of  flag,  58 
Military  supplies,  138;  absolute  contraband,  147 
Municipal,  prohibition  covering  contraband  is,  160 
Munitions,  export  of,  122;  absolute  contraband,  148 
Montesquieu,  188 

Nassau,  164 

Natural  Law,  relations  of  innovations  to,  70 ;  war  abnormal 
by,  133 

Naval  Conference,  see  Declaration  of  London 

Naval  war,  31 

Necessity,  as  grounds  for  Orders  in  Council,  118,  119; 
rejected  as  an  excuse  by  Hautefeuille,  225 

Netherlands,  1781  convoy,  43 

Neutral,  animus  toward  belligerent,  53;  difficult  path  of, 
48;  influence,  8  et  seq.,  28;  matter  opened  to,  35;  status, 
9;  right  course  of,  23,  73;  may  be  pacificist,  25;  non- 
combatant,  26;  may  injure  self,  54;  flag,  56  et  seq.,  62;  to 
dictate  law  of  future,  29;  participation  in  enemy  trade, 
34;  duty  to  scrutinize  novel  rules,  36;  acts  justifying 
action  by,  37;  caution  in  arming,  40;  consignments  to, 
reaching  belligerents,  40;  Netherlands  as,  43;  vessels 
immune  under  convoy,  44;  ship  on  seas  part  of  home 
country,  46;  function  of  n.  government  in  war  time,  67; 
interest  in  conventional  law,  68;  recasting  doctrines 
would  relieve,  141;  more  harmed  by  blockade  than 
enemy,  143;  goods  when  confiscated,  145;  restraints  on 
neutral  trade,  100  et  seq.,  154;  guided  by  principles,  171; 
obligations  burdensome,  173;  necessity  for  vigorous 
action,  177;  connection  with  eleemosynary  enterprises, 
181;  right  to  express  opinion,  186,  192;  sympathy  of, 
when  interest  affected,  193;  must  hold  alien  in  check, 
207;  aggressive  policy  of,  74;  rights  to  be  insisted  on, 
when,  76;  course  when  law  fails,  75;  to  claim  wider  sea 
control,  80;  attitude  toward  blockade,  84,  92,  94;  ports. 


Index  255 


blockade  of,  87,  120,  121,  124;  avoidance  of  troubles,  88; 
ships  in  port  (blockade),  89;  theory  of  blockade,  93; 
ports,  cargoes  bound  to,  106;  right  to  trade,  129;  attitude 
of  combatant  toward,  131 ;  embargo,  as  a  neutral  weapon 
of  offense,  225;  may  fall  back  on  civil  embargo,  226; 
responsible  for  future  of  International  Law,  248 

Neutrals,  affected,  li,  14,  18;  limited  sovereignty  of,  16; 
attitude  of  belligerents  toward,  17;  coalition  of,  24; 
at  sea,  31  e/  seq.;  reply  of  exporting  neutrals,  41 ;  part  of 
war,  51;  enfranchised,  when,  79;  submarine  blockade  of, 
ineffective,  no;  Orders  in  Council  hurtful  to,  117; 
affected  by  oppressive  rules,  163;  value  of  embargo  to, 
223  et  seq. 

Neutral  citizens,  rights  of,  22 ;  instructed  as  to  rights  and 
duties,  233  et  seq. 

Neutral  duties,  as  defined  by  proclamation,  230  et  seq., 
168-173;  to  conspiring  belligerents,  196  et  seq.;  because 
of  alien  residents,  216;  see  Proclamation,  233  et  seq. 

Neutral  goods,  in  country  of  belligerent,  34;  open  to 
belligerent  criticism,  136;  transshipped  to  enemy,  145; 
outside  of  guarded  waters,  160;  confiscated,  when,  161 

Neutral  Powers,  rules  not  to  be  altered  by,  31;  to  be  noti- 
fied of  blockade,  89;  rights  never  resigned,  115;  generally 
majority  of  states,  144;  should  familiarize  themselves 
with  principles,  167;  Hague  Conference  respecting  rights 
and  duties  of,  170;  power  to  improve  conditions,  177; 
duty  to  conspiring  belligerents,  196  et  seq.;  treatment  of 
foreign  diplomats  and  residents,  197,  198;  suffering  be- 
cause of  war,  220;  embargo  a  weapon  of,  221-222;  see 
Neutral  States 

Neutral  rights,  24,  1^6  et  seq.,  ig7etseq.;  5ee  Proclamation, 
233  et  seq. 

Neutral  ships,  taken  to  allied  harbors,  112;  concealing 
contraband,  1 12 ;  seizure  of,  outside  of  blockaded  waters, 

Neutral  States,  weary  of  chestnut  pulling,  13 ;  self-restraint 
of,  15;  to  take  action,  when,  28;  to  go  on  record,  37; 
should  refuse  to  relax  rules  of  convoy,  45 ;  limitations  of, 
61;  recognition  of  American  Civil  War  blockade,  95; 
warned,  107;  supplying  Germany,  in;  trend  of  sym- 
pathy in,  not  preventable,  193;  see  Neutral  Powers;  bel- 
ligerent agents  in,  195  et  seq.;  aliens  in,  210  et  seq. 

Neutrality,  message  regarding,  185  et  seq.;  of  no  virtue  in 
itself,  191,  192;  distinct  from  national  sympathy,  194; 
maintenance  of,  difficult  because  of  foreign-bom  citizens, 


256  Index 


Neutrality  (Continued) 

205;  not  synonymous  with  weakness,  207;  useless  if  not 

virile,  207 

New  Jersey,  218 

New  York,  218 

Non-combatants,  on  merchantmen,  26;  Germany's  atti- 
tude toward,  49;  claims  as  to  prejudice,  132 

North  America,  affected  by  immigration,  195 

North  Sea,  trade,  41 ;  blockade  of,  103;  war  zone  of,  107 

Norway,  bounding  war  zone,  107 

Notification  of  blockade,  89 

Notice,  not  required  in  absolute  contraband,  148 

Notices,  by  belligerents  as  to  contraband,  149 

Opinion,  expression  of,  185  et  seq. 

Oppenheim,  L.,  on  use  of  flag,  5,  58;  definition  of  blockade, 

85,  86;  as  to  embargo,  222;  regarding  U.  S.,  231 
Orders  in  Council,  39,  11 3-1 15,  117  et  seq.;  definition  of 

blockade  before,  82;  certain  seas  referred  to  in,  115; 

Earl  Grey's  defense  of,  125 

Pacificists,  should  see  cost  of  peace,  24;  may  be  neutrals, 

25 ;  way  to  secure  ends  of,  76 
Paris  Convention,  as  to  blockade,  92 
Peace,  world,  24 
Penal  Code  of  U.  S.,  proclamation  of  acts  forbidden  by, 

233 

Pennsylvania,  218 
Peterhoff,  case  of,  121,  164 

Phillimore,  Sir  Robert,  6,  131 ;  on  use  of  flag,  58;  on  block- 
ade, 83;  on  preemption,  141 
Positive  Law,  recent  proclamation  without  standing  in, 

108;  war  not  regarded  normal  by,  133 
Practices,  belligerent,  12;  of  nations,  19,  20;  way  to  correct 

irregular,    21;    belligerent   practice   on    high    seas,  32; 

a  grievance,  41;  convoy,  42;  British,  in  use  of  flag,  60; 

individual  practice  in  use  of  flag,  63;  changes  in,  67,  70; 

not  satisfying  principle,  78 ;  varied  by  new  conditions, 

103;  extension  of,  121;  questionable,  not  endorsed,  164 
Preemption,  of  neutral  vessels  not  carrying  contraband,  146 
Preparedness,  discussed,   102;  duty  of,  7,  8;  paramount 

duty,  3,  4;  requisite  of  virile  neutrality,  207;  as  essential 

to  neutral  supremacy,  248 
Press,  not  to  be  trammeled  by  possible  censor,  52 ;  expert 

service  of,  48  et  seq. 


Index  257 

Principles,  introduce  practice,  19;  legal,  25;  practice  not 
satisfying,  78;  may  be  time  to  seek  new,  79;  high  seas 
not  to  be  closed  by  legal,  no;  unvarying,  121;  as  to 
extending,  of  blockade,  123;  self-respect  a  principle  of 
international  law,  200 

Prize  Court,  ships  bearing  contraband  must  go  to,  146; 
objection  to  such  on  neutral  soil,  171 

Proclamation,  of  war  area,  104;  of  President  Wilson  defining 
neutral  duties,  230  et  seq. ;  of  President  of  U,  S.  should 
be  printed  in  different  languages,  238,  239 

"  Reason  of  the  thing,"  as  applied  by  neutrals,  73 
Retaliatory  measures,  113 
Revolution,  in  ships,  guns,  etc.,  79 
Rights,  cardinal,  176  et  seq. 
Rotterdam,  122;  use  of,  by  belligerents,  105 
Ruse  de  guerre,  American  request  as  to  use  of  flags,  61 
Russia,  as  to  Declaration  of  London,  105 
Russian  Government,  adoption  of  British  list  of  contra- 
band, 156 
Russo-Turkish  War,  immigration  to  time  of,  211 

Scandinavian,  receipt  of  enemy  goods,  41 

Scotland,  bounding  war  zone,  107 

Scott,  James  B.,  reference  to  Hague  Conference,  86 

Scott,  Sir  Walter,  the  Boedus  Lust,  222 

Search,  right  of,  10;  doctrine  of,  15  et  seq.;  convoy  provided 

to  avoid,  43;  construed,  107;  for  concealed  contraband, 

112 
Seas,  freedorn  of,  7  et  seq.;  high,  not  free,  10;  description  of, 

9;  human  life  on,  26;  belligerent  practices  on,  32;  neutral 

vessel   on    high    part   of   home    country,    46;     British 

supremacy  on,  78;  not  to  be  closed,  no 
Seizure,  limitation  of  right  of,  90;  of  neutral  ships,  112 
Sequestration,  222 
Ships,  not  informed  of  blockade,  89;  outward  bound  from 

blockaded  port,  90 
Ships  of  war,  see  War  ships 
Sovereign  rights,  invasion  of,  115 
Sovereignty,   justifiable,    71;   of   waters,    80;  attempt  of 

belligerent  to  impose,  84,  85;  characteristic  of  nations, 

129;  rule  of  contraband  negatives,  131 ;  embargo  as  a 

means  for  vindicating,  227 
Springbok,  case  of,  121 
Spring-Rice,  Sir  Cecil,  no 
17 


258  Index 


Story,  J.,  unenclosed  ocean  of,  10 
Stowell,  Lord,  Flad  Ozen  case,  19;  Immanuel  case,  129 
Submarine,  German  use  of,  36;  hail  of,  54;  blockade,  109; 
a  frightful  innovation,    109,   110;  terror  inaugurated, 

113 

Sulpicius,  letters  of,  132 
Supply  ships,  treatment  of,  55 
Sweden,  as  to  convoy  in  1653,  42 

Tories,  likened  to  "hyphens,"  206 

Trade,  neutral,  affected,  71;  avenues  of  world,  80;  inter- 
fered with  by  paper  blockade  of  Germany,  112;  enemy's, 
to  be  crippled,  118;  Great  Britain's  interference  with, 
124;  right  of  neutral  to,  129, 132 ;  better  block  all  neutral, 
or  none,  140;  routes,  145;  restraint  from,  154 

Transshipment,  of  cargoes,  40,  145 

Treason,  act  of  foreign-born  citizen  may  be,  198-199; 
machinery  to  punish,  204 

United  States,  failure  to  appreciate  value  of  preparedness, 
4;  opportunity  of,  8;  Mason  and  Slidell  incident,  11; 
discontent  in,  12;  matter  forced  on,  22;  request  of,  38; 
law  as  to  transshipment  of  cargoes,  40;  treaties  as  to 
convoy,  44;  concessions  secured  by  firmness  of,  47; 
stirred  by  press,  48;  respect  for  flag,  56;  note  from  Earl 
Grey  to,  60;  as  to  use  of  flag,  63;  citizens  affected 
by  international  law,  102;  as  to  Declaration  of  London, 
106;  affected  by  blockade,  102,  103;  objections  to  block- 
ade, 115;  exception  to  British  action,  112;  suggestion  as 
to  U.  S.  attitude,  119;  blockade  of  Confederate  coast, 
121;  Austrian  note  to,  122;  list  of  contraband  received 
from  Great  Britain,  149;  withdrawal  of  suggestion,  152; 
affected  by  restrictions,  etc.,  155;  Department  of  State, 
156;  ship  how  affected  by  practice,  i57;_neutraHty  rules 
recognized  by,  170;  particular  interest  in  eleemosynary 
effort,  181;  experience  of,  in  matter  of  foreign  residents, 
181-183;  search  for  ground  to  prosecute  conspirators, 
198;  complacent  in  face  of  alien  conspiracies,  199;  true 
course  for,  when  attacked  through  industries,  201  et  seq.\ 
law  passed  by  Congress  of,  1799,  204;  law  affecting 
disloyal  citizens,  205;  certain  laws  aimed  at  disloyal 
citizens  of,  206;  statute  regarding  threat  against,  208; 
passed  first  foreign  enlistment  act,  232;  decisions  of  U. 
S.  Courts,  237;  task  of,  213;  duty  as  neutral  regarding 


Index  259 


foreign  residents,  216;  census  as  to  industrial  capital, 
218;  duties  of,  as  defined  by  proclamation,  230  et  seq.; 
greatest  of  neutrals,  231 ;  waters  not  to  be  used  for  hostili- 
ties, 235  et  seq.;  regarding  use  of  ports,  235  et  seq.;  per- 
sons required  to  obey  laws  of,  237;  regarding  attitude  of, 
at  close  of  war,  247 

United  States  Supreme  Court,  case  of  Peterhoff,  etc.,  121, 
138,  164;  Bermuda,  etc.,  129,  164;  clear  reasoning  of,  164; 
does  not  furnish  precedents  for  questionable  practices, 
164 

Urmeutral  acts,  referred  to,  119;  service,  166  et  seq. 

Vattel,  quoted,  63 

Vessels,  report  of  captain,  43 ;  right  to  visit,  54;  as  to  supply 
ships,  55;  severities  justified,  27;  use  of  neutral  flag,  58; 
seizure  of  ships  misusing  flag,  58 ;  convoy,  42 ;  new  condi- 
tions, 13,  79;  on  blockade,  89;  contrasts  in,  94;  that  have 
delivered  contraband,  146;  may  be  contraband,  146; 
bearing  contraband  must  go  to  Prize  Court,  146 

Visitation,  as  affected  by  convoy,  42 ;  right  of,  55 

War,  act  of  alien  residents  maybe,  199,  208;  preparation 
for,  by  enemy,  208 

War  measures,  novel,  36;  Russo-Turkish,  211 

War  ships,  absolute  contraband,  148;  convoy,  41;  report  of 
captain  as  to  convoyed  ship,  43 ;  claim  that  they  represent 
government  on  sea,  46;  searched  by  Great  Britain,  46; 
if  A  rmenian  refused  to  answer  hail  of,  54 ;  right  to  compel 
visitation,  54;  use  by  enemy  of  neutral  flag,  58,  79; 
exception  in  case  of,  89;  contrasted,  79,  94;  restrictions 
affecting,  172;  affected  by  proclamation,  233  et  seq.; 
severities  justified,  27 

Washington  Administration,  attitude  of,  18;  pleas  reaching, 
21;  protest  regarding  use  of  flag,  60;  correspondence  on 
neutral  trade,  102,  104 

Washington,  George,  205,  231 

Waterways,  as  to  control  of,  78-80;  certain,  not  control- 
lable, 116 

Westminster,  peace  of,  43 

Wharton,  Francis,  reference  to  Digest  of,  168 

Wheaton,  Henry,  222 

Wilson,  resignation  of  Secretary  Bryan  from  Cabinet  of,  23- 
25 ;  attention  to  neutral  rights,  25 ;  attitude  toward  peace, 
29;  Administration  action  in  regard  to  flag,  60;  state- 


26o  Index 


Wilson  (Continued) 

ment  of  Law  of  Nations,  103;  appeal  for  neutral  expres- 
sion, 185  et  seq.;  Proclamation  of  Neutrality,  230  et  seq. 

Zone,  of  German  submarines,  62 ;  authoritative,  8 1 ;  of  sea 
in  blockade,  98;  rights  of  neutral  in  war  zone,  115;  of 
so-called  British  influence,  125;  as  to  seizure,  outside  of 
controlled  zone,  134 


fi^'' 


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